author: TOOKEY, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Troy Allan MANWILLER, Defendant-Appellant.
    A162554
    Court of Appeals of Oregon.
    Argued and submitted October 13, 2017. December 12, 2018
    Julie A. Smith, Portland, argued the cause for appellant. Also on the brief was Cosgrave Vergeer Kester LLP.
    Greg Rios, 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.
   TOOKEY, J.

Defendant appeals a judgment of conviction for second-degree theft, ORS 164.045. As part of his sentence, the trial court ordered defendant to pay the victim, his former employer, restitution in the amount of $25,176.56 for economic damages caused by defendant's theft of the victim's metal. The $25,176.56 of restitution imposed represented the $37,676.56 in economic damages that the state had established that defendant had caused to the victim by stealing the metal, less a total of $12,500 comprised of (1) $10,000 that the trial court found was precluded by a prior small claims action that the victim had brought against defendant, which resulted in a $2,500 judgment in favor of the victim, and (2) $2,500 that defendant had paid to the victim to satisfy the small claims judgment.

On appeal, defendant assigns error to the trial court's imposition of restitution, arguing that the court should have concluded that issues decided in the small claims action, or the judgment resulting from the small claims action, rendered it without authority to impose any restitution for the metal that defendant stole. For the reasons that follow, we conclude that the trial court did not err when it concluded that the small claims action did not render it without authority to impose any restitution against defendant. Accordingly, we affirm.

We begin by stating the facts in the light most favorable to the state. State v. McClelland , 278 Or. App. 138, 139, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016) (applying that standard in considering challenge to award of restitution). The victim in this case is a company that principally manufactures bath and kitchen products. Defendant ran the victim's foundry. Between July 2012 and December 2013, defendant, for his own benefit, manufactured products using the victim's foundry, production resources, and, importantly here, metal. Defendant's employment was terminated in December 2013 after the victim learned of the theft.

In October 2014, the victim instituted a small claims action against defendant seeking to recover $10,000 in damages-the statutory cap for damages in small claims actions-for defendant's "unapproved use of [the victim's] foundry, equipment, gas, labor, and metal." See ORS 46.405(3) (stating the small claims cap). At the hearing in the small claims action, defendant admitted to using the victim's foundry and gas but denied using its metal. He testified that he had "cancelled checks and invoices" reflecting his own purchases of metal and that he had given that information to detectives. As a result, the judge presiding over the small claims action expressed "concern" that the victim had not proven its case:

"I'm most concerned about-he says he's got his own metal that he used. That's a big chunk of what you're asking for, and I haven't really heard proof that it was [he who] took this metal. There's metal missing: You've said that; but you haven't really tied it to him yet."

A witness for the victim responded that she could not "really tie it to" defendant.

The small claims court ultimately determined that, although defendant "probably did" steal the victim's metal, the victim had not met its burden of proof as to the metal theft:

"I don't find that you've met your burden on the aluminum. It seems fishy; he probably did it; I don't know. He admitted to using the shop and the gas, and he owes you for that.
"The numbers are almost impossible to figure out, because he was doing it after hours and you didn't really know what was going on, so the number that I'm going to give is somewhat arbitrary. I'm going to put it at 25 percent of your claim, which is twenty-five hundred bucks. That's what I think you've proven. I can't go any further."

The small claims court went on to note, however, that, if there was a criminal case, the victim would be made whole via restitution:

"I will say this: Any criminal case, restitution's going [to be] ordered through the Court. You'll be made whole. If he actually did it and they can prove it, you're going to get your money at some point anyway."

After the conclusion of the small claims action, defendant paid the victim $2,500 to satisfy the resulting judgment.

Defendant was subsequently indicted for three counts of aggravated first-degree theft, ORS 164.057, relating to three separate time periods. Each count alleged that defendant "did unlawfully and knowingly commit theft of property of the total value of $10,000 or more, the property of [the victim]." See ORS 164.057(1)(b) (aggravated first-degree theft requires that "the value of the property in a single or aggregate transaction is $10,000 or more"). Defendant pleaded no contest to the lesser-included offense of second-degree theft, ORS 164.045, on Count 1. Defendant also admitted to the conduct charged in Count 2 and Count 3 "for the purposes of ordering restitution." The trial court accepted defendant's admission and no contest plea. The state explained to the trial court during the restitution hearing that the charges in the indictment were "based on" the victim's "loss of * * * metals."

Following defendant's plea and admission, the state, as it was required to do under ORS 137.106(1)(a), presented evidence to the trial court regarding the amount of the victim's economic damages. That evidence included testimony from the victim's office manager, as well as a spreadsheet that the office manager created at the request of law enforcement, reflecting that over $37,000 worth of metal had disappeared from the victim's foundry during the time periods covered by the indictment. The state ultimately requested that the trial court impose $37,676.56 in restitution for defendant's "unauthorized use of metals." Despite his admission to the conduct alleged in Count 2 and Count 3 for the purposes of ordering restitution and his no contest plea to the lesser-included offense of second-degree theft, defendant, for his part, again testified that he did not steal metal from the victim. He submitted into evidence copies of checks and invoices purporting to reflect that he had purchased his own aluminum during the time periods covered by the indictment and argued that "the [s]tate[ ] * * * or the victims [were] * * * collaterally [estopped] from seeking full restitution" from the trial court for the metal theft given the prior small claims action.

The trial court found that the victim's office manager was "credible" and that "everything she outlined, as far as how she came up with the figures, made sense." In contrast, the trial court did not credit defendant's testimony, finding instead that "it definitely sounds like there was theft going on." It also noted, with respect to the checks defendant submitted into evidence, that those "made it look like [defendant] was trying to kind of mix a little bit of credibility * * * to kind of cover * * * some of the other stuff that he was doing." The trial court ultimately held that "the [s]mall [c]laims action does * * * provide issue preclusion for $10,000," the maximum amount of damages that could be awarded in that action. Additionally, it reduced the restitution that it awarded by $2,500-the amount that defendant had already paid to the victim. Consequently, the trial court imposed restitution in the amount of $25,176.56, reflecting the $37,676.56 in economic damages that the state had established that defendant had caused to the victim by stealing the metal, less the $10,000 that it held was precluded by the small claims action and the $2,500 that the victim had already received for defendant's use of the victim's "shop and * * * gas." The trial court noted that it thought the plea offer was "exceptionally light," but that it would "go along with the plea offer" because it was ordering "that much restitution."

On appeal, defendant argues that the trial court erred "in failing to hold that the small claims judgment precludes any restitution for the metal" in the criminal case. (Emphasis in defendant's brief.) Defendant contends that, pursuant to the Supreme Court's decision in State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016), courts must apply certain "civil concepts" to restitution proceedings. Defendant maintains that common-law issue preclusion and claim preclusion, as well as what defendant characterizes as "statutory preclusion rules"-viz. , ORS 43.130(2), ORS 43.160, and ORS 46.485(4) -are such concepts. According to defendant, because those doctrines and statutes would bar the victim from obtaining an award of damages in a subsequent civil action for defendant's theft of metal, the trial court lacked authority to award any restitution to the victim here. Defendant requests that we "reverse the restitution award."

The state argues, among other points, that issue preclusion would not preclude a civil action by the victim because "preclusion would be unfair under the circumstances of this case." The state requests that we "affirm the trial court's restitution order."

"We review the trial court's legal conclusion with respect to its authority to award restitution for errors of law, and we are bound by the court's findings of fact if there is evidence in the record to support them." State v. Carson , 238 Or. App. 188, 191, 243 P.3d 73 (2010) (internal citation omitted).

I. ISSUE PRECLUSION

We turn first to issue preclusion. "Issue preclusion prevents parties from relitigating issues that were actually litigated and determined in a prior action." State ex rel. English v. Multnomah County , 348 Or. 417, 431, 238 P.3d 980 (2010). "Issue preclusion can be based on the constitution, common law, or a statute." Fisher Broadcasting, Inc. v. Dept. of Rev. , 321 Or. 341, 347, 898 P.2d 1333 (1995). In this case, defendant, as we understand his argument, relies on both statutory and common-law issue preclusion.

A. Statutory Issue Preclusion

With respect to statutory issue preclusion, defendant cites ORS 43.130(2), ORS 43.160, and ORS 46.485(4). See ORS 43.130(2) (providing that a judgment "is, in respect to the matter directly determined, conclusive between the parties, their representatives and their successors in interest by title subsequent to the commencement of the action * * *, litigating for the same thing, under the same title and in the same capacity"); ORS 43.160 (providing "[t]hat only is determined by a former judgment, * * * which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto"); ORS 46.485(4) (providing that "[a] judgment in the small claims department is conclusive upon the parties and no appeal may be taken from the judgment"). The difficulty with defendant's reliance on those statutes is that he fails to develop any cogent, much less persuasive, argument as to how and why those statutes apply to the facts of this case, or, importantly here, how the criteria necessary for the "statutory preclusion rules" to apply differs from the criteria necessary for common-law issue preclusion to apply. Rather, defendant's only assertion regarding the applicability of those statutes is that, "[i]f [the victim] had brought a subsequent civil action against defendant, th[o]se statutes would have barred it from relitigating the issue of damages relating to the metal because the issue of whether defendant used [the victim's] metal (or supplied his own) was actually and necessarily decided in the earlier small claims court action [the victim] brought against defendant." That conclusory sentence, coupled with citations to ORS 43.130(2), ORS 43.160, and ORS 46.485(4), is an insufficient basis on which to reverse the trial court's restitution award. As we have observed, it is not this court's proper function to make or develop a party's argument when that party has not endeavored to do so itself. Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700-01 n. 2, 64 P.3d 1193, adh'd to on recons. , 187 Or. App. 472, 68 P.3d 259 (2003).

We note that defendant also asserts, without analysis or elaboration, that under ORS 46.485(4), a small claims judgment is the type of judgment to which courts must give preclusive effect. As mentioned above, ORS 46.485(4) provides that "[a] judgment in the small claims department is conclusive upon the parties and no appeal may be taken from the judgment." But "[c]onclusive upon the parties," as that phrase is used in ORS 46.485(4), has "always been interpreted to mean that small claims decisions may not be appealed." Written Testimony, Senate Committee on the Judiciary, S.B. 395, Feb. 1, 1991, Ex. C at 3-4 (statement of William Linden, State Court Administrator) (noting the 1991 amendment to ORS 46.485(4), which added "and no appeal may be taken from the judgment" to the statutory text, was "suggested simply as a clarification"). Consequently, we reject defendant's argument that statutory issue preclusion rendered the trial court in this case without authority to impose any restitution against defendant.

B. Common-Law Issue Preclusion

With respect to common-law issue preclusion, in Nelson v. Emerald People's Utility Dist. , 318 Or. 99, 104, 862 P.2d 1293 (1993), the Supreme Court identified the following five requirements for common-law issue preclusion to preclude relitigation of an issue:

"1. The issue in the two proceedings is identical.
"2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding.
"3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue.
"4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding.
"5. The prior proceeding was the type of proceeding to which this court will give preclusive effect."

(Internal citations omitted.)

Additionally, "[e]ven where those elements are met, '[t]he court must also consider the fairness under all the circumstances of precluding a party.' " Minihan v. Stiglich , 258 Or. App. 839, 855, 311 P.3d 922 (2013) (quoting State Farm v. Century Home , 275 Or. 97, 110, 550 P.2d 1185 (1976) (second brackets in Minihan ) ); see also Stewart Title Guaranty Co. v. DCBS , 272 Or. App. 138, 143, 354 P.3d 744 (2015) (recognizing that courts must "consider the fairness under all the circumstances of precluding a party" even when the Nelson elements are satisfied (internal quotation marks omitted) ). In particular, if " 'the circumstances are such that our confidence in the integrity of the [first] determination is severely undermined, or that the result would likely be different in a second trial, it would work an injustice to deny the litigant another chance.' " Hancock v. Pioneer Asphalt, Inc. , 276 Or. App. 875, 881, 369 P.3d 1188 (2016) (quoting City of Portland v. Huffman , 264 Or. App. 312, 316, 331 P.3d 1105 (2014) ). Examples of such circumstances are "a trial court's determination that was 'manifestly erroneous[,]' 'newly discovered or crucial evidence that was not available to the litigant at the first trial * * * [and] would have a significant effect on the outcome[,]' or 'extant determinations that are inconsistent on the matter in issue.' " Stewart Title Guaranty Co. , 272 Or. App. at 146-47, 354 P.3d 744 (quoting State Farm , 275 Or. at 108, 110, 550 P.2d 1185 (brackets and omission in Stewart Title Guaranty Co. ) ).

Additionally, we have recognized that "[t]he availability of a review for correction of error is a critical factor in the application of collateral estoppel or issue preclusion" because

" '[t]he estoppel doctrine * * * is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct. In the absence of appellate review, or of similar procedures, such confidence is often unwarranted.' "

Universal Ideas Corp. v. Esty , 68 Or. App. 276, 281-82, 681 P.2d 1176, rev. den. , 297 Or. 546, 685 P.2d 997 (1984) (quoting Standefer v. United States , 447 U.S. 10, 23 n. 18, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980) ); see also State Farm , 275 Or. at 107, 550 P.2d 1185 ("The deference we lend to prior adjudications is based on our reason-able confidence as to their correctness * * *."). Consequently, for issue preclusion to apply, "there must have been an opportunity to appeal" the earlier determination. Universal Ideas Corp. , 68 Or. App. at 282, 681 P.2d 1176 ; see also Restatement (Second) of Judgments § 28 (1982) (providing that "relitigation of [an] issue in a subsequent action between the parties is not precluded" when the "party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action").

Defendant points to State v. Thompson , 138 Or. App. 247, 908 P.2d 329 (1995) to support his argument that issue preclusion can operate to limit a trial court's authority to impose restitution in a criminal case. Our decision in Thompson concerned a defendant who, after sustaining an injury suffered in the course of her employment, filed a claim for and received, workers' compensation benefits. Id. at 249, 908 P.2d 329. An investigation by the workers' compensation insurer, SAIF, revealed that, while the defendant was receiving benefits, she had "earned wages from another employer and was operating her own business while receiving time loss benefits." Id . Subsequently, the Hearings Division of the Workers' Compensation Board (board) held a hearing "regarding several issues involving [the] defendant's workers' compensation claim," at which SAIF contended that the amount of its overpayment was $7,785. Id. The referee determined that the amount of the overpayment was $1,941 and ordered that that amount be offset from the defendant's other benefits. Id. SAIF did not appeal. Id.

The defendant was then indicted for, and pled guilty to, first-degree theft, admitting that she had "received SAIF benefits while employed." Id. At the restitution hearing, the defendant argued that "there should be no order of restitution" because "the amount of restitution had already been resolved at the workers' compensation hearing, [and] that that amount had been offset against her benefits." Id. at 249-50, 908 P.2d 329. The state, for its part, presented evidence that the defendant had been overpaid by $7,785. Id. at 250, 908 P.2d 329. The trial court "found $7,783 to be the correct restitution amount less the $1,941 already credited to [the] defendant." Id.

The defendant appealed and we reversed, framing the issue before us as whether the "legislature intended under the criminal restitution statutes to limit the amount of restitution awarded to the amount of pecuniary loss determined in the previous administrative hearing." Id . at 252, 908 P.2d 329. We determined that it did, noting that, under the doctrine of issue preclusion, "[i]f the insurer were seeking recovery from the defendant for the overpayment of the benefits in a civil proceeding, it would not be entitled to judgment against defendant" because "the amount claimed by the insurer had been litigated and adjudicated in the administrative hearing, and defendant [had] paid that obligation." Id. at 253, 908 P.2d 329. We concluded that, "because there could be no successful civil recovery by the victim, the trial court was without authority to make the award," and that it was "unclear to us how requiring defendant to pay an amount that it has been determined that she does not owe serves the policies of rehabilitation and deterrence expressed by ORS 137.106." Id. at 254, 908 P.2d 329.

Defendant's reliance on Thompson is misplaced, however. Given the circumstances of this case, we conclude that issue preclusion does not prevent recovery by the victim for defendant's theft of metal. For the reasons explained below, we conclude that it would be unfair to apply issue preclusion to preclude relitigation at a restitution hearing of the issue of whether defendant stole the victim's metal.

First, in Thompson , the determination of the defendant's liability for receiving an overpayment of benefits was consistent in the board hearing and the criminal case; the only issue relitigated at the restitution hearing was the amount of the overpayment. Here, as a result of defendant taking inconsistent positions in the small claims action and the criminal action, at the time of the restitution hearing, there were, in effect, inconsistent "extant determinations" regarding defendant's criminal conduct-i.e. , whether defendant stole the victim's metal. In particular, in the small claims action, defendant denied that he stole any metal from the victim. As a result, the small claims court awarded the victim no damages for defendant's metal theft-notwithstanding the small claims court's observation that defendant "probably did it." Subsequently, in the criminal case, defendant admitted to the conduct charged in Count 2 and Count 3 of the indictment "for purposes [of] restitution." Those counts were based on the victim's loss of metal and alleged that defendant had committed theft from the victim of property valued at over $20,000. See ORS 164.057 (1)(b). Defendant's admission in the criminal case to the theft of property valued at over $20,000 from the victim was an unequivocal one, such that defendant would be "preclude[d] * * * from contesting [his] guilt" for that conduct "at a later time." State v. Thorpe , 217 Or. App. 301, 306, 175 P.3d 993 (2007). As the Supreme Court has noted, in the context of issue preclusion, "we are not free to disregard incongruous results when they are looking us in the eye." State Farm , 275 Or. at 108, 111, 550 P.2d 1185 (noting that, in determining whether "extant determinations" are inconsistent, "[w]e do not give much weight to variations in the wording of the pleadings * * * where essentially the same acts and omissions are alleged"); see also Johnson v. Babcock , 238 Or. App. 513, 522, 243 P.3d 120 (2010), rev. den. , 349 Or. 602, 249 P.3d 123 (2011) (concluding that it would be "fundamentally unfair" to apply issue preclusion given the "existence of inconsistent decisions on [an] issue").

Second, in Thompson , although SAIF did not appeal, it did have the opportunity to appeal the board's decision. 138 Or. App. at 249, 908 P.2d 329 ; ORS 656.298(1) (1993) (providing for judicial review of board orders by the Court of Appeals). In this case, the victim had no opportunity to seek review for correction of any errors that occurred in the small claims action because, by statute, "no appeal may be taken from [a] judgment" rendered in the small claims department. ORS 46.485(4). As a result, the victim in this case could not have sought review of the earlier determination and, because that "critical factor" is absent, our "confidence that the result achieved in the initial litigation was substantially correct * * * is * * * unwarranted." Universal Ideas Corp ., 68 Or. App. at 281-82, 681 P.2d 1176 (internal quotation marks omitted). For that reason, too, it would be unfair to preclude relitigation of the small claims court's determination that defendant did not steal the victim's metal.

Third and finally, we note that "the theory behind restitution ultimately is 'penological: It is intended to serve a rehabilitative and deterrent purpose by causing a defendant to appreciate the relationship between his criminal activity and the damage suffered by the victim.' " State v. N. R. L. , 354 Or. 222, 226, 311 P.3d 510 (2013) (quoting State v. Hart , 299 Or. 128, 138, 699 P.2d 1113 (1985) ). In Thompson , the defendant had completely compensated SAIF for the economic damages that were caused by the defendant's criminal conduct, as adjudicated by the board, and, accordingly, we observed that it was "unclear to us how requiring [the] defendant to pay an amount that it has been determined that she does not owe serves the policies of rehabilitation and deterrence expressed by ORS 137.106." 138 Or. App. at 254, 908 P.2d 329. In this case, at the time of the restitution hearing, defendant had not compensated the victim for any of its economic damages caused by defendant's metal theft. It is unclear to us how accepting defendant's argument in this case and concluding that the trial court was without authority to award any restitution-which would result in a large wind-fall to defendant-would serve the policies of rehabilitation and deterrence that underlie ORS 137.106 and are meant to cause defendant to appreciate the relationship between his criminal activity and the damage suffered by the victim.

Thus, we conclude that it would be unfair to apply issue preclusion to preclude relitigation at the restitution hearing of the issue of whether defendant stole the victim's metal. Consequently, we reject defendant's argument that common-law issue preclusion rendered the trial court in this case without authority to impose any restitution against defendant.

II. CLAIM PRECLUSION

We next turn to claim preclusion. The Supreme Court has described claim preclusion as follows:

" '[A] plaintiff who has prosecuted one action against a defendant through to a final judgment * * * is barred [i.e. , precluded] * * * from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action.' "

Drews v. EBI Companies , 310 Or. 134, 140, 795 P.2d 531 (1990) (quoting Rennie v. Freeway Transport , 294 Or. 319, 323, 656 P.2d 919 (1982) (brackets and omissions in Drews ) ).

"[T]he doctrine of claim preclusion can be separated into two concepts: the rule of merger and the rule of bar." English , 348 Or. at 431, 238 P.3d 980. Under the rule of merger, "once a plaintiff obtains a valid, final judgment, the plaintiff's underlying claim merges into the final judgment and is extinguished. For that reason, the plaintiff can no longer maintain an action on the underlying claim." Id. at 432, 238 P.3d 980. The "rule of bar," in contrast, "prohibits parties from splitting claims by requiring plaintiffs to bring all claims arising from the same factual transaction or circumstances in a single action." Id. (internal quotation marks omitted).

Here, as we understand defendant's position, his contention is that, because the rule of merger and the rule of bar would preclude civil recovery by the victim for defendant's theft of metal, the trial court lacked authority to award any restitution in this case.

Defendant's position is inconsistent with our prior case law analyzing the effect of a prior civil suit on the state's ability to seek and obtain restitution in a criminal proceeding. In State v. Hull , 68 Or. App. 817, 820, 683 P.2d 157, rev. den. , 298 Or. 37, 688 P.2d 845 (1984), the defendant "argue[d] that [an] order to pay restitution * * * [was] improper, because the [victim] ha[d] obtained a civil judgment against him for its losses." We disagreed, noting that "[r]estitution is not a form of civil recovery." Id. We concluded that the proper procedure when a crime victim has obtained a civil judgment prior to a restitution proceeding is that, "[i]f defendant makes restitution for the loss covered by the civil judgment, 'the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in such civil action.' " Id. (quoting ORS 137.109(1) ).

That is, notwithstanding that claim preclusion would have likely precluded a subsequent civil action by the victim in Hull , we concluded that the state was entitled to seek, and the trial court was authorized to impose, restitution on the defendant, as long as the process for crediting payments provided for by ORS 137.109(1) was followed. In Thompson , we reaffirmed the conclusion that we reached in Hull , again recognizing "that a trial court may order restitution even after a civil judgment has been entered so long as the defendant is credited for amounts previously paid." 138 Or. App. at 254 n. 3, 908 P.2d 329.

Defendant does not argue that Hull and Thompson are no longer good law, nor does he develop any argument that the legislature intended for claim preclusion, as a "civil concept," to prevent a trial court from imposing restitution when claim preclusion would preclude civil recovery by a crime victim. Consequently, we reject defendant's argument that claim preclusion rendered the trial court in this case without authority to impose any restitution against defendant.

III. CONCLUSION

In light of our analysis above, we conclude that the trial court did not err when it concluded that the small claims action did not render it without authority to impose any restitution against defendant. Consequently, we affirm.

Affirmed.

      Though the small claims court specifically mentioned aluminum in its ruling, the parties agree that the small claims court's determination regarding the victim's failure to meet its burden encompassed aluminum as well as other types of metal.

      ORS 137.106 provides, in part:
      "(1)(a) When a person is convicted of a crime * * * that has resulted in economic damages, the district attorney shall investigate and present to the court, * * * evidence of the nature and amount of the damages. * * * If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court."
      In Ramos , 358 Or. at 594, 368 P.3d 446, the court concluded that "the legislature's cross-reference to the definition of 'economic damages' applicable in civil actions, and the legislature's purpose in creating the restitution procedure as a substitute for a civil proceeding, make civil law concepts relevant to our interpretation of ORS 137.106." The court did not, however, conclude that trial courts, when imposing restitution, are obligated to apply every "civil concept" that could potentially preclude or diminish recovery in a civil action by the victim. See State v. Kirschner , 358 Or. 605, 608-10, 368 P.3d 21 (2016) (rejecting contention that because "under the American Rule, a party to a civil action may not recover the costs incurred in that action as damages, a victim in a criminal proceeding also may not be awarded such costs as restitution," where accepting that contention would "fail to recognize that restitution is a criminal sanction that is sought by the state, not by the victim"); State v. Gutierrez-Medina , 287 Or. App. 240, 241-42, 244, 246, 403 P.3d 462 (2017), rev. allowed , 362 Or. 389, 411 P.3d 380 (2018) (concluding Oregon's comparative fault scheme, ORS 31.600 to 31.620, "does not apply to the criminal restitution statute, ORS 137.106," in part because the procedure contemplated by ORS 137.106(1)"expressly forecloses the court from engaging in the type of apportionment of damages that comparative fault contemplates").

      The state does not request any disposition other than affirmance.

      While the rule of merger began as common law, ORS 43.130(2) now codifies it. English , 348 Or. at 432 n. 9, 238 P.3d 980.

      ORS 137.109(1) provides:
      "Nothing in ORS 137.103 to 137.109, 137.540, 144.102, 144.275, 161.675 and 161.685 limits or impairs the right of a person injured by a defendant's commission of a crime, * * * to sue and recover damages from the defendant in a civil action. Evidence that the defendant has paid or been ordered to pay restitution * * * may not be introduced in any civil action arising out of the facts or events that were the basis for the restitution. However, the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in such civil action."


source: Caselaw Access Project

author: POWERS, J.

license: Public Domain

text:
    Brandon MAXFIELD, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
    A163470
    Court of Appeals of Oregon.
    Argued and submitted November 3, 2017. January 3, 2019
    Dennis N. Balske, Portland, argued the cause and filed the briefs for appellant.
    Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
   POWERS, J.

This post-conviction case comes to us for a second time after we initially reversed and remanded the judgment denying petitioner relief. See Maxfield v. Nooth , 278 Or. App. 684, 377 P.3d 650 (2016). In this proceeding, petitioner argues, and the superintendent concedes, that the post-conviction court exceeded the scope of remand by revisiting the issue of whether trial counsel failed to exercise reasonable professional skill and judgment instead of addressing the issue of prejudice under the correct standard. For the reasons set out below, we agree with the parties that the post-conviction court exceeded the scope of remand and we remand again to the post-conviction court to determine whether trial counsel's deficient performance prejudiced petitioner.

Our first opinion set out the circumstances of petitioner's conviction and petition for post-conviction relief:

"Petitioner was convicted in a bench trial of nine counts of robbery-three counts of first-degree robbery and six counts of second-degree robbery. The trial court sentenced him to a sum of 40 years' incarceration. It did so by imposing consecutive sentences on five of the counts.
"Petitioner seeks post-conviction relief on the ground that he received inadequate and ineffective assistance of counsel at sentencing, in violation of his rights under Article I, section 11, [of the Oregon Constitution] and the Sixth Amendment [to the United States Constitution]. Specifically, he contends that, by failing to present a mitigation case at sentencing, his trial counsel performed below constitutional standards, and that his trial counsel's deficient performance prejudicially affected the trial court's sentencing decision. To prove this claim, petitioner introduced affidavits from friends and family members, and presented live testimony from a legal expert and a neuropsychological expert.
"The post-conviction court was persuaded by petitioner's evidence that trial counsel performed deficiently by not presenting mitigation evidence at petitioner's sentencing. However, as noted, the court determined that petitioner had not persuaded it that the omitted mitigation evidence 'would have had any effect on the decision that [the sentencing judge] made or the sentence that he received.' "

Id. at 685-86, 377 P.3d 650 (first and second bracketed text added; third bracketed text in original).

In his first appeal, petitioner challenged the post-conviction court's prejudice determination, arguing that the court's ruling illustrated that it had erroneously required petitioner to prove that it was more likely than not that the omitted mitigation evidence would have affected the court's sentencing decision. Id. at 686, 377 P.3d 650. We agreed and held that the post-conviction court had applied an incorrect legal standard to decide prejudice under both Article I, section 11, and under the Sixth Amendment. Id. at 688, 377 P.3d 650. Accordingly, we reversed and remanded "for the post-conviction court to evaluate prejudice under the legally correct standard." Id. at 689, 377 P.3d 650. Notably, the superintendent did not challenge on appeal the post-conviction court's determination that trial counsel's performance was deficient. Id. at 686, 377 P.3d 650.

On remand, it appears that the post-conviction court invited the parties to file written submissions summarizing the parties' claims and arguments, which the superintendent did. The post-conviction court then entered an amended general judgment denying petitioner relief on the basis of deficient performance. The post-conviction court explained:

"[A]ny attempt to by the Petitioner to shift the blame for his crimes onto his very difficult family life or drug usage would have been contrary to his trial counsel's sound advice that Petitioner's best chance for a lenient sentence was to accept full responsibility for his actions-not blame them on other circumstances. Trial counsel's conduct did not fall below the standard by failing to engage a more extensive investigation into petitioner's background given the facts and circumstances of this case."

As noted above, on appeal petitioner asserts, and the superintendent agrees, that the post-conviction court exceeded the scope of remand.

To evaluate an inadequate assistance of counsel claim, a court engages in a two-step inquiry: First, it must determine whether petitioner demonstrated by a preponderance of the evidence that counsel failed to exercise reasonable skill and judgment; and then second, if the court determines that petitioner met that first burden, the court must further determine whether petitioner proved that counsel's deficient performance had a tendency to affect the result of the trial. See , e.g. , Lichau v. Baldwin , 333 Or. 350, 359, 39 P.3d 851 (2002) ; Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that the applicable standard under the Sixth Amendment is whether counsel's performance "fell below an objective standard of reasonableness"). In this case, we agree with petitioner and the superintendent that the post-conviction court erred by addressing the deficient-performance prong on remand.

The scope of remand is a question of law that is reviewed for legal error. Allen v. Premo , 251 Or. App. 682, 685, 284 P.3d 1199 (2012). As we explained in Allen :

"Generally speaking, when our tagline specifies, in toto , 'Reversed and remanded,' the 'reversed' part of the tagline negates the appealed judgment or order and the remanded part sends the case back to the lower tribunal as though the original proceeding did not occur. There may be exceptions, such as when something in the text of the opinion itself clearly indicates that the remand is partial."

Id. at 686, 284 P.3d 1199. In this case, our remand exemplified one of the exceptions to the general rule, viz. , we specifically stated in the text of the opinion that "we reverse[d] and remand[ed] for the post-conviction court to evaluate prejudice under the legally correct standard." Maxfield , 278 Or. App. at 689, 377 P.3d 650. Accordingly, by addressing the deficient performance prong of petitioner's claim, the post-conviction court erred by exceeding the scope of our remand.

Having concluded that the post-conviction court erred by revisiting the deficient performance prong of the analysis, we must decide whether to remand for further proceedings or determine the legal question of prejudice without remand. See , e.g. , Cox v. Persson , 289 Or. App. 825, 828, 412 P.3d 1199 (2018) (remanding to the post-conviction court for it to determine whether it would exercise its discretion to expand the record before determining the issue of prejudice on an expanded record or decline to expand the record and reinstate the judgment); Ashley v. Hoyt , 139 Or. App. 385, 396, 912 P.2d 393 (1996) (describing the choices and ultimately choosing to address the legal question of prejudice without remand because the post-conviction court rendered sufficient factual findings). Both parties argue that we can, and should, decide the issue of prejudice in this appeal. For his part, petitioner asserts that the post-conviction court failed to address the substantial mitigation evidence presented during the post-conviction hearing and that, had it done so, it would have been required to order petitioner resentenced. The superintendent remonstrates that we should conclude that petitioner failed to prove prejudice because "none of the affidavits or sworn testimony indicate that the witnesses were available or would have given statements consistently with their post-conviction testimony" and, in any event, petitioner was not prejudiced given the substance of the proffered testimony. Although we agree with the parties that the determination of whether petitioner was prejudiced by trial counsel's deficient performance is a question of law that we may address on appeal, we decline to do so for the following reasons.

First, on remand, the post-conviction court will be able to exercise its discretion to determine whether to make a determination about prejudice on the existing record or reopen the record for the parties to present additional evidence. See Cox , 289 Or. App. at 828, 412 P.3d 1199 (explaining that, "when this court reverses and remands for retrial of a particular issue, a trial court ordinarily will have the discretionary authority to reopen the record if it concludes that it is appropriate to do so, unless our decision or another source of law provides otherwise").

Second, a remand to the post-conviction court, will provide it the opportunity to make findings of fact and conclusions of law related to the superintendent's assertions that some or all of the proposed witnesses either would not have been available to testify at the underlying criminal proceeding or, even if available, may have not testified consistent with their post-conviction averments. See , e.g. , Phillips v. Premo , 280 Or. App. 634, 644, 381 P.3d 986 (2016) (explaining that, to obtain post-conviction relief on a claim that trial counsel should have called specified witnesses at trial and sentencing, a petitioner has "to present evidence that the witnesses would have been available to testify at the trial and sentencing and that their testimony would have had a tendency to affect the results of those proceedings").

Finally, we are confronted with the same circumstances that were present in the first appeal where we remanded to the post-conviction court for a determination of prejudice using the correct legal standard. In our earlier opinion, we followed Green v. Franke , 357 Or. 301, 350 P.3d 188 (2015), and remanded to the post-conviction court rather than deciding prejudice on our own accord. Maxfield , 278 Or. App. at 689, 377 P.3d 650. In Green , the post-conviction court applied the wrong standard for prejudice by requiring a "probability" rather than the correct "could have tended to affect" standard 357 Or. at 322-23, 350 P.3d 188. The Supreme Court concluded that, "[b]ecause the post-conviction court appears to have applied the wrong legal standard for prejudice, it is inappropriate to affirm the post-conviction court's judgment on prejudice grounds on the record before us." Id. at 323, 350 P.3d 188. Because the circumstances are the same as when we remanded in our earlier opinion and, because this case presents a situation like the one the court faced in Green , we similarly conclude that it would be inappropriate under the circumstances for us to decide the question of prejudice. Accordingly, we remand the case to the post-conviction court to address prejudice in the first instance.

Reversed and remanded.

      The record does not reflect that petitioner filed anything in response to the post-conviction court's invitation, nor does the record reflect that the post-conviction court held any conference or hearing following remand.


author: DeVORE, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. David Alan MOLES, Defendant-Appellant.
    A161140
    Court of Appeals of Oregon.
    Submitted February 26, 2018. January 9, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Defendant appeals a judgment of conviction for six counts of first-degree sexual abuse committed against the victim, a child under the age of 14. He assigns error to the trial court's denial of his motion in limine to exclude evidence that he had also abused the victim's mother when she was a child. According to defendant, the trial court erred in its assessment of the probative value of that evidence of uncharged misconduct and, consequently, the court erroneously concluded under OEC 403 that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. As we will explain, the trial court conducted OEC 403 balancing with regard to each of the specific purposes for which the state offered the evidence, and it acted within its discretion to admit the evidence for one of those purposes: that is, to show defendant's sexual purpose in committing the charged acts. Because the evidence was properly admitted for that purpose, any error that the trial court may have committed with regard to admitting the evidence for other purposes was harmless on this record. Accordingly, we affirm.

I. BACKGROUND

Defendant was charged with committing various crimes against D, the minor granddaughter of his ex-wife, when D was roughly between the ages of 6 and 10. Six of the counts alleged first-degree sexual abuse, based on allegations that defendant had, on separate occasions and at different locations, touched D's genitals, breasts, or buttocks, or caused D to touch defendant's genitals. Defendant was also charged with one count of first-degree sodomy involving D.

Before trial, defendant filed a motion in limine to exclude any evidence that, approximately 20 years earlier, defendant had sexually abused D's mother when she was between the ages of 10 and 15. D's mother made that dis-closure to police when reporting defendant's abuse of D. Defendant anticipated that the state would offer evidence that mother "claims that a couple of times each week, every week, [defendant] would digitally penetrate her and make her perform oral sex on him. She said she did not know why this stopped when she was 15."

In addition, there was evidence that defendant had made incriminating statements to an investigating officer to the effect that any misconduct with D's mother had occurred when defendant had been drinking, but that he had not had a drink for the past 20 years. That evidence was the subject of the same motion and an additional motion to suppress, based in part on the fact that the officer had failed to record the statements; the court denied that additional motion, and it is not at issue on appeal.

In his motion in limine , defendant framed his arguments about the statements of D's mother in light of the Supreme Court's then-recent decision in State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), which addressed the admission of evidence of prior bad acts in a child sexual abuse case. Defendant acknowledged that Williams held that "other act evidence is admissible to prove propensity or character in child sexual abuse cases," but argued that the evidence was still subject to balancing under OEC 403. Defendant took the position, in light of Williams , that evidence of his abuse of D's mother was "not relevant. However, should the court find that the evidence is relevant that relevancy is limited to the prior acts amounting to propensity evidence and is not admissible at trial under OEC 403."

In response, the state argued that the evidence was admissible on multiple theories. First, the prosecutor explained that it was relevant on a propensity theory, which was similar to that described in Williams , that defendant had a sexual interest in family members who are children, from which the jury could infer that he acted with a sexual purpose toward D. Second, based on statements defendant made to the investigating officer, the prosecutor anticipated that one of the defenses at trial might be "that if there was any type of conduct, it was misconstrued, it was accidental type of touching," so that "whether or not the defendant acted with a sexual purpose is going to be a central issue in this case." Therefore, the prosecutor argued, the evidence was admissible "to show the defendant's intent, absence of mistake under the doctrine of chances theory." And, third, the prosecutor argued that the evidence was relevant to "explain people's conduct." Specifically, the evidence explained the fact that, at various times over the years, D's mother had asked D whether she had been abused by defendant. According to the prosecutor, without the evidence that D's mother had been abused herself by defendant, the jury would wonder why she was asking about the abuse and whether she had coached D or implanted memories. The prosecutor argued, the probative value of the evidence on those various theories was not substantially outweighed by the danger of unfair prejudice to defendant.

The trial court largely agreed with the state, and it issued a detailed letter opinion to explain its reasoning with regard to each of the three theories of relevance. The court began its analysis by addressing the state's propensity argument based on Williams . The court concluded that the evidence was relevant under Williams to demonstrate that defendant acted with a sexual purpose: "[A] jury could reasonably infer that defendant's prior abuse of [D's mother] indicates defendant has a sexual interest in children and that defendant acted from that interest when he touched the child victim in this case. Such evidence, which has a tendency to make it more probable that defendant had a sexual purpose when he committed the charged act, is logically relevant under OEC 401."

The court then turned to the issue of OEC 403 balancing. In conducting its balancing, the court considered the five factors set forth in United States v. LeMay , 260 F.3d 1018 (9th Cir. 2001), which had been cited by the Supreme Court in Williams . Those factors were the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the acts charged, the frequency of the prior acts, the presence or lack of intervening circumstances, and the need for the evidence in light of other testimony at trial.

Based on its analysis of those five factors, the trial court concluded that the probative value of the evidence to show defendant's sexual purpose outweighed the danger of unfair prejudice.

After concluding that the evidence was admissible on that propensity theory, the court addressed whether the evidence was also relevant to prove intent under the analysis set forth in State v. Johns , 301 Or. 535, 725 P.2d 312 (1986). The court reasoned that the evidence met each of the first five Johns criteria (the present charge required proof of intent; the prior acts required the same mental state as the present charge; the victim in the prior act was the same victim or in the same class of victim; the type of act was the same or similar; and the physical elements of the prior act and the present act were similar). The court then considered additional factors set forth in Johns related to OEC 403 balancing and concluded that the probative value of the evidence to show intent was not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, undue delay, or presentation of cumulative evidence.

Finally, the court agreed with the state's contention that the evidence was admissible "to explain witness behavior." The court ruled that, "[f]or the jury to fairly assess the credibility of [D] and to assess what occurred between her and the defendant, the jury needs to have a full understanding of the relationship between her mother and the defendant."

At trial, D's mother testified as anticipated. She testified that defendant had abused her when she was about 10 years old, including penetrating her vagina with his finger and performing oral sex on her, and that it lasted until she was around 15. Shortly after she testified, and again at the close of evidence, the court instructed the jury regarding its consideration of the evidence of uncharged misconduct. The court's jury instructions tracked its ruling on the motion in limine , limiting the jury's consideration of the evidence to the three purposes identified in that ruling. Moreover, the jury was instructed to consider the evidence for those purposes only after determining that defendant subjected D to the alleged contact.

The jury returned a guilty verdict on six counts of first-degree sexual abuse against D, and it found defendant not guilty of the sodomy charge. The court entered a judgment of conviction on the six counts of sexual abuse, which defendant appeals.

II. ANALYSIS

On appeal, defendant argues that the trial court erred in denying his motion in limine . He contends that the evidence was not relevant for any of the three theories for which it was offered-to show sexual purpose, intent under the doctrine of chances, or to explain witness behavior. He further argues that, to the extent the court erroneously assessed the relevance of any of those theories, we must reverse under the Supreme Court's decision in State v. Baughman , 361 Or. 386, 410, 393 P.3d 1132 (2017), because "an error in assessing the relevant purposes for the evidence significantly affects the trial court's decision under OEC 403." For the reasons that follow, we are not persuaded that defendant has demonstrated reversible error with regard to the denial of his motion in limine .

A. Admissibility to Show Sexual Purpose

1. Relevancy

As a threshold matter, the trial court correctly ruled that defendant's past abuse of D's mother was relevant to show defendant's "sexual purpose" toward D. See State v. Pitt , 352 Or. 566, 576, 293 P.3d 1002 (2012) (a determination that evidence is relevant is reviewed for errors of law). Williams is squarely on point. In that case, "the state was required to prove that defendant had acted with a sexual desire that was aroused or gratified by contact with children." 357 Or. at 23, 346 P.3d 455. The court explained that, "[b]ecause most adults do not have such a desire, the state was entitled to prove that defendant is an adult who does. The fact that defendant has a sexual interest in children would not, alone, establish that defendant acted on that interest in the charged circumstances, but it is a fact that is logically relevant to that issue." Id.

Here, too, the state was required to prove that defendant acted with a sexual desire that was aroused or gratified by contact with a child. See ORS 163.427(1)(a) (first-degree sexual abuse requires proof that defendant subjected the victim, a person under the age of 14, to "sexual contact"); ORS 163.305(6) (defining "sexual contact" as "any touching of the sexual or other intimate parts * * * for the purpose of arousing or gratifying the sexual desire of either party"). The fact that defendant previously exhibited a sexual interest in another child is logically relevant to that issue. A jury could infer from evidence of defendant's abuse of D's mother that defendant had a sexual interest in children generally, and it could take that interest into account when determining if defendant acted on that interest with regard to the charged offenses. See Williams , 357 Or. at 23, 346 P.3d 455.

Defendant's efforts to distinguish Williams on the issue of relevance are not persuasive. First, he argues that "the prior acts against [D's mother] are not probative on that point [sexual purpose], because unlike in Williams , defendant contests that he committed the acts against [D's mother]." But defendant does not explain, nor is it readily apparent, why a defendant's denial of the prior acts would necessarily change the relevance determination under Williams -particularly where the trial court was presented with ample competing evidence that the sexual contact occurred, including an officer's testimony that defendant previously admitted inappropriate contact with D's mother.

Defendant's other argument is that the "abuse of [D's mother] allegedly continued until [she] was 15 years old. One cannot infer a sexual interest in eight to nine year old children from that act." That argument merits almost no discussion. Evidence of sexual abuse of a victim that begins around the age of 10-even if it continues into teenage years-is probative of a sexual interest in eight- or nine-year-old children for purposes of Williams .

2. OEC 403 balancing

Because we agree with the trial court's conclusion that the challenged evidence was relevant to defendant's "sexual purpose" in committing the charged offenses against D, the next question is whether the trial court acted within its discretion in determining that the probative value of the evidence for that purpose was not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, undue delay, or presentation of cumulative evidence. See Williams , 357 Or. at 20, 346 P.3d 455 (explaining that, after the enactment of OEC 404(4), "in a prosecution for child sexual abuse, the admission of 'other acts' evidence to prove character and propensity under OEC 404(4) depends on whether the risk of unfair prejudice outweighs the probative value of the evidence under OEC 403"); State v. Langley , 363 Or. 482, 515, 424 P.3d 688 (2018) (a trial court's balancing under OEC 403 is reviewed for abuse of discretion).

In State v. Mayfield , 302 Or. 631, 645, 733 P.2d 438 (1987), the court described the process that courts should employ when assessing uncharged misconduct evidence under OEC 403 :

"In making this decision under OEC 403, the judge should engage in four steps. First, the trial judge should assess the proponent's need for the uncharged misconduct evidence. In other words, the judge should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime. The third step is the judicial process of balancing the prosecution's need for the evidence against the countervailing prejudicial danger of unfair prejudice, and the fourth step is for the judge to make his or her ruling to admit all the proponent's evidence, to exclude all the proponent's evidence or to admit only part of the evidence."

The quantum of probative value of evidence refers to the "measure of persuasiveness that attaches to a piece of evidence." State v. Lawson , 352 Or. 724, 757, 291 P.3d 673 (2012). Or, "[p]ut another way, it is the strength of the relationship between the proffered evidence and the proposition sought to be proved." State v. Sewell , 257 Or. App. 462, 469, 307 P.3d 464, rev. den. , 354 Or. 389, 315 P.3d 420 (2013) (citations and internal quotation marks omitted); see also State v. Anderson , 363 Or. 392, 423 P.3d 43 (2018) ("The probative value of evidence is a function of two variables: the degree to which evidence is relevant to prove or disprove an issue and the extent to which that issue is material to the resolution of the case.").

On the other side of the scale, "[t]he critical inquiry in determining whether evidence is unfairly prejudicial is whether the evidence improperly appeals to the preferences of the trier of fact for reasons that are unrelated to the power of the evidence to establish a material fact." Sewell , 257 Or. App. at 469, 307 P.3d 464 (citations and internal quotation marks omitted). "Other acts" evidence, in particular, has the capacity " 'to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.' " Baughman , 361 Or. at 402-03, 393 P.3d 1132 (quoting Old Chief v. United States , 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ). For that reason,

"when 'other acts' evidence goes only to character and there are no permissible inferences the jury may draw from it, it is more likely that the evidence will be excluded. Such evidence generally will have little or no cognizable probative value, and the risk that the jury may conclude improperly that the defendant had acted in accordance with past acts on the occasion of the charged crime will be substantial."

Williams , 357 Or. at 20, 346 P.3d 455 (some internal quotation marks omitted; emphasis in original).

In Williams , the court observed that this balancing determination "must be made on a case-by-case basis," and it cited the Ninth Circuit's decision in LeMay , 260 F.3d at 1028, as an example of a case setting out a "list of nonexclusive factors that trial courts may consider in weighing the risk of prejudice presented by 'other acts' evidence offered under" Federal Rules of Evidence 413 and 414 -rules that allow for the admission of evidence of prior sexual assaults or child molestation in cases in which the defendant is accused of those crimes. Williams , 357 Or. at 20, 346 P.3d 455.

LeMay is one of the seminal cases on the question of FRE 403 balancing in the context of prior acts of sexual abuse. LeMay , drawing on earlier cases from the Ninth and Fifth Circuits, explained:

" Rule 403 provides that relevant evidence may be excluded, among other reasons, if 'its probative value is substantially outweighed by the danger of unfair prejudice.' FRE 403. In [ Doe by Glanzer v. Glanzer , 232 F.3d 1258, 1268 (9th Cir. 2000) ], we stated that '[b]ecause of the inherent strength of the evidence that is covered by [ Rule 414 ], when putting this type of evidence through the [ Rule 403 ] microscope, a court should pay "careful attention to both the significant probative value and the strong prejudicial qualities" of that evidence.' Glanzer , 232 F.3d at 1268 (quoting United States v. Guardia , 135 F.3d 1326, 1330 (10th Cir. 1998) ). We also articulated several factors that district judges must evaluate in determining whether to admit evidence of a defendant's prior acts of sexual misconduct. These factors are: (1) 'the similarity of the prior acts to the acts charged,' (2) the 'closeness in time of the prior acts to the acts charged,' (3) 'the frequency of the prior acts,'
(4) the 'presence or lack of intervening circumstances,' and (5) 'the necessity of the evidence beyond the testimonies already offered at trial.' Id. We also stated that this list of factors is not exclusive, and that district judges should consider other factors relevant to individual cases . Id. "

260 F.3d at 1027-28 (brackets in original; emphasis added).

Some circuit courts have since criticized LeMay as being too rigid, to the extent that it sets forth a list of factors that must be considered by trial courts. See United States v. Hawpetoss , 478 F.3d 820, 825-26 (7th Cir. 2007) ; see also United States v. Kelly , 510 F.3d 433, 437 n. 3 (4th Cir. 2007), cert. den. , 552 U.S. 1329, 128 S.Ct. 1917, 170 L.Ed.2d 778 (2008) (noting a circuit split on "whether a district court must address these or other specific factors and make findings," and suggesting that "the Seventh Circuit's more flexible approach seems preferable"). However, even the Seventh Circuit has recognized that "the factors articulated in LeMay are certainly a helpful guide for a district court in making the discretionary determination on the admissibility of such evidence." Hawpetoss , 478 F.3d at 825.

We conclude that the nonexclusive list of factors articulated in LeMay under FRE 403 provides a helpful guide for trial courts applying OEC 403 to balance the probative value and unfair prejudice of other acts evidence in a child sexual abuse case. The factors assist a trial court in carrying out the steps described in Mayfield : They inform an assessment of the probative value of and proponent's need for the uncharged misconduct evidence, as well as the determination of how prejudicial that evidence is. The first four factors-similarity of the prior acts and charged acts, the closeness in time, the frequency of the prior acts, and the presence or lack of intervening circumstances-bear on the measure of persuasiveness and potential prejudice of the evidence, and the fifth factor directly addresses the proponent's need for the evidence.

In this case, the trial court provided a thorough explanation of its analysis under the LeMay factors:

"1. The similarity of the prior acts to the acts charged. Similarities include: age, location, access, and relation: Both [D's mother and D] were pre-teens at the time of their alleged abuse, both endured the abuse in the defendant's home, were allegedly abused when defendant was acting as their care provider and was in a position of authority and trust, and both were young relatives of defendant. Differences include: acts performed, alcohol, threats, and age difference. [D's mother] alleges defendant had her perform oral sex on him while [D] alleges he performed oral sex on her. Defendant stated that his actions with [D's mother] happened at a time when he was drinking. [D's mother] made no allegations of threats while [D] did. [D's mother] was between ten and fifteen years old at the time of the alleged abuse while [D] was between five and six. Despite these differences, the court finds the acts are sufficiently similar that this factor weighs in favor of the other act evidence being more probative than prejudicial.
"2. The closeness in time of the prior acts to the acts charged. The acts occurred at least twelve years apart. In LeMay , the court noted 'the lapse of twelve years does not render the decision to admit relevant evidence of similar prior acts an abuse of discretion.' Id. at 1029, citing United States v. Rude , 88 F.3d 1538, 1550 (9th Cir. 1996). The court finds this factor still weighs in favor of the probative value of the other act evidence.
"3. The frequency of the prior acts. Both [D's mother and D] allege the abuse was ongoing and happened with regularity. The court finds this factor weighs in favor of the other act evidence being more probative than prejudicial.
"4. The presence or lack of intervening circumstances. There are no intervening circumstances. Other than the fact that the alleged abuse ended when she was 15, there is no evidence as to why the alleged abuse of [D's mother] stopped.
"5. The necessity of the evidence beyond the testimonies already offered at trial. There is no physical evidence in this case. The state's case rests on the testimony of eleven year old [D]. The defendant's statements will likely be contested because the officer failed to record them and the court is willing to give a jury instruction regarding best evidence and the statutory requirement to record the defendant's statements. The state further anticipates the defense will allege [D] has been coached and fabricated the allegations. The court finds there is a great need for the other act evidence and this factor weighs in favor of the evidence being more probative than prejudicial.
"Based on these factors, the court finds the admission of defendant's propensity evidence is more probative than prejudicial under OEC 403."

In challenging that ruling, defendant argues that the trial court overstated the probative value of the evidence and "erroneously discounted" the unfair prejudice to defendant from defending against allegations from the distant past. Specifically, he argues that the probative value of the evidence was nonexistent because defendant contested that he committed abuse against D's mother and because of the age differences between D's mother and D at the time of the abuse. As we explained previously with regard to the threshold relevance determination, 295 Or. App. at 612-13, 435 P.3d at 787-88, those arguments are unpersuasive. The trial court's assessment of the quantum of probative value was consistent with evidence and reason: The prior acts and the charged acts were not identical-there were differences in the circumstances of the sexual abuse, as the trial court observed-but they were similar enough to demonstrate that defendant had a sexual interest in children who were relatives, and repeated enough to show that the prior abuse was not accidental or misunderstood but was intentionally undertaken for defendant's sexual gratification. For those reasons, the evidence had cognizable probative value on an element of the charged offenses, as distinct from the types of propensity inferences that have little or no probative value in establishing a material fact. See Williams , 357 Or. at 20, 346 P.3d 455 (describing the "spectrum" of probative value with nonpropensity purposes at one end and, at the other, evidence that "goes only to character and there are no permissible inferences the jury may draw from it " (emphasis altered) ); id. at 23, 346 P.3d 455 (stating that there is a "slim but distinct difference between using the underwear evidence to establish defendant's character and propensity to act accordingly, and offering that evidence to establish defendant's sexual purpose"). With regard to prejudice, defendant argues that the uncharged misconduct involved acts that occurred more than a decade before the charged acts and required defendant to defend against both sets of allegations in equal measure. The trial court did not "erroneously discount" that prejudice. The court took the remoteness of the conduct into account but concluded that the events were not so remote as to weigh in favor of exclusion. It is apparent from the trial court's reliance on Williams and LeMay that the court appreciated the dangers inherent in requiring a defendant to defend against past, uncharged misconduct. The court simply disagreed with defendant that the prejudice to him substantially outweighed the probative value of the evidence, in light of the state's need for that evidence.

With regard to that third step of the analysis-balancing in light of the proponent's need for the evidence-defendant argues that the state had little need, as opposed to the "great need" described by the trial court, because "defendant's commission of the charged acts is stronger evidence of defendant's sexual purpose than the fact that he had sexual contact with a different person at a different time." Defendant's characterization of the state's need for the evidence is reasonable; but it is not the only reasonable characterization. The trial court's conclusion was likewise based on reason and evidence. Under the particular circumstances of the case, the state had a particularly acute need for the evidence of sexual purpose because there was no physical evidence, defendant was likely to contest the officer's testimony about defendant's admissions due to a problem recording the police interview, and D's mother's conduct raised questions as to whether she had coached D or fabricated the allegations of other charged acts.

For all of those reasons, we conclude that the trial court's decision to admit the evidence to show sexual purpose-even if different from how this court might ultimately have resolved the balancing question in the first instance-represents a permissible exercise of the court's discretion under the totality of the circumstances in this case. See Sewell , 257 Or. App. at 468-69, 307 P.3d 464 (explaining that we "generally defer to the trial court's decision regarding whether the probative value of the evidence is substantially outweighed by the potential for prejudice," unless the court "exercises its discretion to an end not justified by, and clearly against, evidence and reason" (citations and internal quotation marks omitted) ). We affirm the trial court's ruling regarding the admissibility of the evidence to show sexual purpose notwithstanding any error that the trial court may have committed in assessing the probative value of the evidence for the state's other proffered purposes. Defendant is correct that a trial court's error in assessing the probative value of evidence on one theory can significantly affect the court's balancing under OEC 403, where the court has considered the probative value of all theories collectively . See, e.g. , Baughman , 361 Or. at 409, 393 P.3d 1132 ("When a trial court errs in determining that other acts evidence is relevant for a nonpropensity purpose, that decision necessarily affects the trial court's weighing and admission of that evidence, and we, as an appellate court, can consider the effect of that evidence and whether its admission was harmless."). However, that is not the case here, where the trial court engaged in an independent analysis of admissibility for the purpose of proving sexual purpose, including a separate balancing of the probative value with regard to that theory alone. Nothing in Baughman or other controlling case law precludes a trial court from undertaking that type of purpose-specific analysis under OEC 403.

B. Other Theories of Admissibility

Having concluded that the prior acts evidence was admissible to show defendant's sexual purpose in committing the charged acts against D, we turn to defendant's contention that the trial court erroneously admitted the evidence on two other theories: (1) to show intent under the doctrine of chances and (2) to explain the conduct of other witnesses. Assuming, for the sake of argument, that the trial court erred in the ways defendant contends, those errors had little likelihood of affecting the jury's verdict and provide no basis on which to overturn defendant's convictions. State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003).

1. Admissibility under doctrine of chances

The doctrine of chances rests on the "proposition that multiple instances of similar conduct are unlikely to occur accidentally." Baughman , 361 Or. at 407, 393 P.3d 1132. The doctrine relates only to proof of a defendant's mental state: "It is important to emphasize that the doctrine of chances applies only to explain whether or not an act that a defendant performed was performed intentionally. It does not apply when there is a dispute about whether the defendant performed the act at all." State v. Tena , 362 Or. 514, 524, 412 P.3d 175 (2018).

In this case, the court concluded that the prior act evidence was admissible on that theory and instructed the jury that it could consider the evidence of past abuse to determine defendant's intent. The prosecutor, relying on that instruction, argued that "you'll receive an instruction on this, you can also consider the defendant's prior conduct. You can also consider that to determine, did he act with intent or was this a mistake."

Although the jury was instructed that it could use the prior act evidence both for "sexual purpose" and "intent," we do not perceive any practical difference in how the jury would have employed that evidence for those purposes, particularly in light of the court's instruction that the jury must first decide whether or not defendant subjected D to sexual contact. If the jury used the evidence of past abuse to conclude that defendant engaged in that contact with D for the purpose of his own sexual gratification, then the jury necessarily would conclude that he acted intentionally and not accidentally. Thus, in light of our conclusion that the evidence was properly admitted to show defendant's sexual purpose, we fail to see how also admitting the evidence to show "intent" under the doctrine of chances would have had any tendency to affect the jury's verdict. See Davis , 336 Or. at 32, 77 P.3d 1111.

2. Admissibility to explain witness behavior

Finally, defendant argues that the court erred by admitting the evidence to explain witness behavior. As described above, the state anticipated that defendant would argue that D's mother had coached her or implanted memories, because D's mother had asked D over the years about whether defendant had abused her. The state argued that, "without that information [about defendant's abuse of D] coming out at trial, I think it's not going to make sense to people and they're going to wonder, you know, why is she asking these questions, is she trying to coach the child or, you know, implant some memory," and that "it's going to be important for the jury to have the full understanding and [D's mother] is going to have to talk about * * * why she was doing that." The trial court agreed, ruling that

"the other acts evidence is admissible under State v. Hall , 108 Or. App. 12, 17, 814 P.2d 172, rev. den. , 312 Or. 151 [817 P.2d 758] (1991), and State v. Zybach , 308 Or. 96, 100, 775 P.2d 318 (1989) to explain witness behavior. For the jury to fairly assess the credibility of [D] and to assess what occurred between her and the defendant, the jury needs to have a full understanding of the relationship between her mother and the defendant."

On appeal, defendant argues that the court erred in admitting the evidence for that purpose because defendant's sexual abuse of D's mother "did nothing to explain the dynamics" of the relationship. According to defendant, "[t]o explain why [D's mother] frequently asked [D] whether anyone had touched her inappropriately, it did not matter who had sexually abused [D's mother] in the past. The important point was that [D's mother] asked, and [D] answered yes." (Emphasis by defendant.)

Defendant's argument on appeal rests on a mistaken premise: The evidence was not merely offered to explain why D's mother asked her if anyone had abused her; it was offered to explain why D's mother asked whether defendant abused her. At the hearing on the motion in limine , defendant's counsel stated, "[I]f I understood the State correctly, the explanation of the prior sexual abuse allegation against [D's mother] explains [her] behavior in continuing to question the complainant here about whether any abuse was occurring between her and [defendant] ." (Emphasis added.) With that broader purpose in mind, we agree with the trial court that the evidence of defendant's past abuse was relevant to explain why D's mother would have asked D about prior abuse and to give context for D's mother's motives and behavior. To the extent that defendant argues that, under OEC 403, the court nevertheless should have excluded that evidence or the details of the evidence, we conclude that any error in that respect is harmless in light of our conclusion that the evidence was properly admitted to show sexual purpose. Defendant's primary argument in that regard, which echoes his relevancy contention, is that the jury did not need to know who abused D's mother and that the court "could have limited the admission of the evidence to a generalized statement from [D's mother] that she had experienced sexual abuse when she was 10 to 15 years old." However, given that the nature of the abuse and defendant's identity as the abuser were otherwise admissible to show sexual purpose, any failure to sanitize the evidence for purposes of explaining witness behavior was harmless on this record.

III. CONCLUSION

The trial court acted within its discretion to admit the evidence of defendant's abuse of D's mother for the purpose of showing that defendant acted with a sexual purpose with respect to the charged offenses. Any error that the trial court may have committed with regard to admitting the evidence for other purposes was harmless on this record.

Affirmed.

      According to the officer, before admitting to touching D sexually, defendant had "said that maybe some inappropriate touching happened during one of the times he was moving" D from one leg to the other when she was sitting on his lap, and that "he rests his hands there on her butt, and then when he wrestled with her, he also mentioned that he would put one hand in her crotch and one hand on her breasts to lift her up in the air."

      The instruction at the close of evidence stated:
      "Prior acts evidence. You heard evidence regarding prior actions of the defendant. In this case the State alleges that [defendant] touched a sexually intimate part of [D] for a sexual purpose and subjected her to deviate sexual intercourse. The testimony presented with regards to defendant's prior actions may be considered by you, the jury, for a limited purpose. Before considering the evidence of the defendant's prior actions, the jury must first decide whether or not [defendant] subjected [D] to sexual contact by touching an intimate part of her or causing her to touch a sexual part of him, or by engaging in deviant sexual intercourse with her. If you decide the defendant subjected her to sexual contact or deviant sexual intercourse, then and only then ma[y] the jury consider evidence of [defendant's] past in deciding whether or not [defendant] acted intentionally or with a sexual purpose, or to explain witness behavior. The evidence of [defendant's] prior acts may only be used for the limited purpose of its bearing, if any, [on] the defendant's intent or whether he acted with a sexual purpose and to explain witness behavior. The prior acts evidence is not by itself sufficient to prove that the defendant committed the act alleged in this case. The defendant is not on trial for any of the acts described by [D's mother] and the defendant denies the accusations made by [D's mother]. Let me remind the jury that the State continues to bear the burden of proof of each and every element of the offense charged and to prove said elements of each charge beyond a reasonable doubt."

      We understand defendant's contention regarding the contested nature of the evidence to relate primarily to the quantum of probative value for purposes of OEC 403 balancing, which we address later in this opinion.

      FRE 413(a) provides, "In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant." FRE 414(a) provides, "In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant."

      We acknowledge that the court's description of the balancing "spectrum" in Williams is ambiguous as to where "other acts" evidence of "sexual purpose" falls. Williams states:
      "When a party objects, under OEC 403, to 'other acts' evidence offered under OEC 404(4), a trial court must engage in the balancing anticipated by OEC 403. At one end of the spectrum, 'other acts' evidence that is offered for nonpropensity purposes-i.e. , to prove motive, intent, identity, or lack of mistake or accident-generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence. [State v. Shaw , 338 Or. 586, 614-15, 113 P.3d 898 (2005) ]. At the other end of the spectrum, as the state recognizes, when 'other acts' evidence 'goes only to character and there are no permissible inferences the jury may draw from it,' it is more likely that the evidence will be excluded. Such evidence generally will have little or no cognizable probative value, and the risk that the jury may conclude improperly that the defendant had acted in accordance with past acts on the occasion of the charged crime will be substantial."
      357 Or. at 19-20, 346 P.3d 455 (emphasis in Williams ). The phrase "goes only to character and there are no permissible inferences the jury may draw from it" could be read to include propensity inferences of "sexual purpose," or it could be read to refer to cases in which the evidence is offered only to show the character of the defendant. We understand it to be the latter. The phrase "no permissible inferences can be drawn from it" derives from Leavitt v. Arave , 383 F.3d 809, 829 (9th Cir. 2004), cert. den. , 545 U.S. 1105, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005), and other Ninth Circuit case law. See Williams , 357 Or. at 7, 346 P.3d 455 (quoting Leavitt ). Those Ninth Circuit cases were describing cases in which "other-act evidence is irrelevant and may violate the due process clause." Leavitt , 383 F.3d at 829. Williams , however, concludes that prior bad acts have cognizable relevance to show sexual purpose, and that admission of such evidence does not violate the due process clause.

      We also note that, during the hearing on the motion in limine , the parties discussed the possibility of a limiting instruction that would restrict the jury's consideration of "other acts" evidence to the specific purposes for which it was admitted, and the court ultimately gave an instruction that required the jury to first find that defendant committed the charged acts before it could consider the evidence of abuse of D's mother. See State v. Brown , 272 Or. App. 424, 432-33, 355 P.3d 216, rev. den. , 358 Or. 145, 363 P.3d 1288 (2015) (explaining that danger of prejudice from "other acts" evidence can be mitigated by the use of proper jury instructions).

      Our decision in State v. Mason , 100 Or. App. 240, 785 P.2d 378 (1990), does not compel a different conclusion. In that case, we held that the trial court abused its discretion in admitting testimony from the child victim's mother that defendant had abused her 20 years earlier. Our holding in that case turned, in significant part, on the "staleness" and "relative weakness" of the victim's mother's testimony. Id. at 244-45, 785 P.2d 378 ; id. at 244, 785 P.2d 378 ("The testimony required defendant to defend not only against the uncorroborated claims of an 11-year-old victim but to convince a jury that her mother was not credible and to rebut evidence of alleged abuse that occurred 20 years before. Therefore, the relative strength of the evidence, and its certainty, become critical factors in determining if the unfairly prejudicial effect outweighed the need that the state had for the evidence and its probative value." (Emphasis added.) ). As the court explained in Williams , the balancing determination "must be made on a case-by-case basis," 357 Or. at 20, 346 P.3d 455, and this case presents a different constellation of circumstances from Mason .

      In his reply brief, defendant states that any error regarding the doctrine of chances would require reversal because "the other two theories of relevance did not require the admission of the details of the past abuse or the identity of defendant as the abuser." However, defendant's only developed argument on that point relates to whether the details of abuse and identity would be necessary to explain witness behavior ; he does not describe how or why the evidence would have been admitted differently to show sexual purpose as opposed to intent, and we will not endeavor to develop that argument for defendant. Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons. , 187 Or. App. 472, 68 P.3d 259 (2003) (explaining that we will not speculate as to what a party's argument might be and that it is not "our proper function to make or develop a party's argument when that party has not endeavored to do so itself").