author: DEHOOG, J.

text:
    In the MATTER OF the MARRIAGE OF Raymond Henry COLTON, Petitioner-Appellant, and Nancy Engelhard Colton, nka Nancy Englehard, Respondent-Respondent.
    A161338
    Court of Appeals of Oregon.
    Argued and submitted February 5, 2018. May 15, 2019
    Kimberly A. Quach, Portland, argued the cause for appellant. On the briefs were Craig M. Cowley and Gevurtz Menashe, P.C.
    Janet M. Schroer, Portland, argued the cause for respondent. Also on the brief were Lindsay H. Duncan and Hart Wagner LLP.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   DEHOOG, J.

Husband appeals a general judgment in which the trial court dissolved the parties' long-term marriage, distributed their assets and debts, awarded wife both spousal support and child support for one child, and awarded child support directly to a second child who was attending school. Husband challenges those support awards in three assignments of error. The focus of each of husband's challenges, however, is on the trial court's calculation of his monthly income, which served as the basis of the court's spousal and child support awards. It is undisputed that the sole source of husband's income is a privately owned business, Validation Resources, LLC (VR), which is a successful scientific testing facility previously equally owned by husband and wife. In its property distribution, the trial court awarded VR to husband, but divided the value it attributed to the business-$ 2.8 million-equally between the parties; after taking into account the court's distribution of the parties' other assets and liabilities, wife's one-half interest in VR resulted in an equalizing judgment in the amount of $ 1,008,565, which the court ordered husband to pay wife over 14 years at a rate of $ 8,490.01 per month. Husband does not challenge that property division or resulting obligation on appeal. They are, however, central to husband's contentions on appeal. That, in part, is because, based largely on its award of VR solely to him, the trial court found husband's income to be $ 55,000 per month, from which it ordered husband to pay an additional $ 12,500 per month in spousal maintenance to wife, who is disabled and unable to work, and to pay child support totaling $ 1,844 per month. Other than a challenge to the trial court's factual findings, which we conclude have evidentiary support and will not disturb, husband's appeal of those support awards reduces to a single legal issue: whether, given that wife was awarded half the value of VR in the court's property distribution, the court erroneously attributed that business's entire income stream to husband in determining his monthly income for purposes of calculating spousal and child support. As explained below, however, husband did not raise that issue before the trial court, and husband's corresponding claims of error are therefore not preserved for appeal. ORAP 5.45(1). Accordingly, we affirm.

As an initial matter, husband requests de novo review of the trial court's factual finding that his present monthly income is $ 55,000. However, husband's argument in favor of de novo review focuses solely on the significance of that finding of fact to the trial court's ultimate award; husband does not meaningfully address the other standards that guide our determination whether de novo review is warranted. As a result, we are not persuaded that this is an "exceptional case" justifying de novo review. ORS 19.415 (3)(b) (in an appeal in an equitable action, the court, "acting in its sole discretion, may * * * make one or more factual findings anew upon the record"); ORAP 5.40(8)(c) ("The Court of Appeals will exercise its discretion to *** make one or more factual findings anew on the record only in exceptional cases. Consistently with that presumption against the exercise of discretion, requests under paragraph (a) or (b) of this section are disfavored."). Consequently, "we are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Morton and Morton , 252 Or. App. 525, 527, 287 P.3d 1227 (2012). We recite the pertinent facts-many of which are undisputed-consistently with that standard.

Husband and wife married in 1988. At the time of trial in September 2015, Husband was 56 years of age and wife was 55. They have two children together, a son, J, who was age 19 and a college student at the time of trial, and a minor daughter, O, then age 15. Pursuant to an earlier stipulated limited judgment, wife has sole custody of O and husband has no parenting time with her. Prior to the parties' separation, the family enjoyed a very comfortable lifestyle.

Husband is a chemical engineer; he also holds a Master of Business Administration degree. He was in good health at the time of trial. In 2001, he founded VR, which tests and analyzes extractables and leachables for biopharmaceutical companies. Although wife was a 50 percent owner of VR during the parties' marriage, husband was its president and chief executive officer. In the recent years leading up to trial, VR provided substantially all of the parties' income. As noted, the trial court valued VR at $ 2.8 million.

Wife has master's degrees in education and exercise science. She was employed full time as a professor at Central Oregon Community College until 2000, when she reduced her workload to care for the children. Wife left her job entirely in 2008, when she was diagnosed with a rare and difficult-to-treat form of non-Hodgkin's lymphoma. She underwent lengthy and challenging treatment, and she continues to have related health issues. The trial court found that wife is "medically and emotionally totally disabled" as a result of her bout with cancer and that her health insurance expenses and uninsured medical expenses for her ongoing care exceed $ 3,000 per month; those findings are not challenged on appeal.

In 2014, husband filed the petition for dissolution of marriage. At the parties' joint request, a reference judge was appointed to hear the case pursuant to ORS 3.305. Over the course of a four-day trial in September 2015, the parties presented extensive evidence regarding husband's income and earning capacity, which, as noted, are the focus of husband's appeal. That evidence included testimony from VR's accountant, from wife's accounting expert, from the business appraiser who had conducted a business valuation of VR at the joint request of the parties, and from husband himself, as well as associated financial records, including VR's 2014 business tax return, a draft of the parties' 2014 personal income tax return, VR's profit and loss summary for the years 2010 through 2014, and a VR "Profit & Loss YTD Comparison," dated August 2015.

Following trial, the court issued a proposed decision. See ORS 3.315(1) (requiring, generally within 20 days after close of evidence, that reference judge provide the parties with a proposed written report containing the court's findings of facts, conclusions of law, and judgment). The court found VR's value to be $ 2.8 million, awarded the business itself to husband, and awarded wife an equalizing judgment that reflected half of VR's assigned value. Specifically, taking into account its distribution of the parties' other assets and liabilities, including the parties' home and 12-acre property (which the court awarded to wife), wife's PERS account, a home equity line of credit, husband's 401(K) accounts, other credit and bank accounts, insurance policies, jewelry, horses, cars, and household goods, the court's proposed decision resulted in an equalizing judgment to wife of $ 1,008,565, which husband was required to pay in monthly installments of $ 8,490.01 over a 14-year period.

Notably, the court's proposed decision stated an initial finding that husband's earning capacity was $ 43,500 per month. Using that income and the statutory child-support guidelines, the court calculated husband's obligation to be $ 848 per month, payable to wife, as child support for O, and $ 848 per month in child support payable directly to J, a child attending school. See ORS 107.108. Additionally, the court awarded wife indefinite spousal maintenance support in the amount of $ 12,500 per month.

Husband filed written objections to the proposed decision and requested a hearing.

See ORS 3.315(2), (3) (any party may file written objections and suggested modifications or corrections to the reference judge's proposed report; if requested, the reference judge must conduct a hearing on the proposed objections before preparing the final written report and judgment). Regarding the court's assessment of his income, husband argued:

"The [reference judge's] letter opinion found that Husband's gross monthly income was $ 43,500 per month. However, as he testified at trial, his available income to pay support and other obligations is substantially lower, because he pays the sum of $ 14,000 per month on existing loans and capitalized leases, so this income is not available to him. Therefore, his true gross monthly income is $ 29,500 per month. This figure should be used by the court in both the child support calculation and in reducing the spousal support award to Wife. Even if his gross monthly income is considered to be $ 43,500 per month, the child and spousal support obligations are over $ 14,000 per month and the property equalization award payment is over $ 8,500 per month for a total payment of over $ 22,500 per month. Considering that he then has $ 14,000 in business debt payments, and $ 13,000 in state and federal and payroll tax obligations, he will have a negative cash flow position before he even takes a salary to pay his own living expenses. Clearly, the current support and money awards as set forth in the proposed General Judgment set up Husband for a default on his obligations and financial ruin."

At the hearing on husband's objections, husband clarified that he was not questioning the court's factual finding that his income was $ 43,500; rather, he was contending that, because he had $ 14,000 in monthly debt payments that had not been accounted for in calculating the net income of the business, $ 29,500 "would be a better figure to use for *** income that's actually available for paying support." In other words, husband emphasized that it was not "an income issue but a cash flow issue," offering the explanation that the reason the loans did not appear on VR's profit and loss statement was because they were principal-only payments. Husband did not challenge the court's valuation of VR or its distribution.

Wife responded that the evidence presented at trial showed husband's monthly income to be approximately $ 67,000 per month, rendering the court's figure of $ 43,500 "actually low." As for husband's argument that the $ 43,500 figure had failed to account for his monthly debt obligation on behalf of VR, wife's counsel contended that he had "impeached [that] very argument" at trial.

Nonetheless, the court agreed to further consider the question of husband's and wife's income-in particular, husband's argument that the court had not properly accounted for husband's obligation to make monthly payments of $ 14,000 to pay for VR's business debt. The court permitted the parties to submit post-hearing memoranda and supporting excerpts from the trial transcript, which the court reviewed before rendering its final decision.

In its final written report and judgment-which included further findings and conclusions-the court rejected husband's argument that its monthly income figure had erroneously failed to account for husband's monthly debt payments, explaining that it was "disregarding husband's newly suggested cash flow analysis as it appears to be disingenuous and self-serving." The court specifically found that

"[h]usband's testimony, as well as the financial representations in his exhibits, is consistently inconsistent and inaccurate at least when it comes to his alleged income and expenses. Indeed his evidence on these issues appears to be intentionally misleading. Accordingly, I have come to view husband's testimony on financial matters with grave mistrust."

Referencing specific trial exhibits and testimony, the court found that husband's earning capacity was "well documented to be at least $ 55,000 per month," a figure it viewed as "very conservative."

Despite increasing its estimate of husband's monthly earnings from $ 43,500 to $ 55,000, the court adhered to its proposed order requiring husband to pay wife $ 12,500 in monthly maintenance support. In addition to relying on the earning disparity it had found between the parties, the court also reasoned that, because husband has no overnights with the children, wife "must devote more of her time and energy to the children" and, with the exception of husband's child support payments and his obligatory contribution to any medical expenses the children may incur, wife was solely responsible for supporting all of their daily expenses and activities. The court also expressly recognized wife's significant health issues and the costs she incurred paying for health insurance and her out-of-pocket expenses for ongoing medical care.

The trial court did, however, use the updated income figure of $ 55,000 to recalculate husband's monthly child support obligation under the statutory guidelines, resulting in child support in the amount of $ 922 for each child. The court did not otherwise materially alter the terms of the proposed judgment in any way relevant here. The court subsequently filed its final written report and judgment, which husband now appeals.

In his first assignment of error, husband contends that "[t]he evidence does not support the Court's finding that Husband could earn $ 55,000 per month." That contention suggests a challenge to the legal sufficiency of the evidence. However, other than one argument that husband also makes in connection with his second assignment of error-an argument we address below, see 297 Or. App. at 543 n. 11, 443 P.3d at 1167 n.11-husband's briefing in support of his first assignment consists almost entirely of argument that, in his view, the trial court must have misinterpreted the record in assessing his income. In effect, he urges us to reassess the evidence, that is, to reweigh the facts found by the trial court.

Had husband persuaded us to exercise de novo review in this case, we might consider those arguments. Because he did not, however, our review as to the court's factual finding of husband's income is limited to whether there is any evidence in the record to support that finding. See, e.g. , Berg and Berg , 250 Or. App. 1, 2, 279 P.3d 286 (2012) (except in those exceptional cases where de novo review is warranted, we review trial court's findings in connection with an award of spousal support for any evidence in the record).

Here, the testimony and financial records at trial do support the finding that husband's monthly income is $ 55,000, and, other than a passing reference to the "any evidence" standard of review, husband does not really argue otherwise. That is, husband does not seriously contend that there is an absence of evidence to support that finding. Rather, as we understand it, husband's argument is that the evidence is legally insufficient to support that finding because the trial court must have misunderstood it. However, husband has not identified anything in the record that compels a different understanding and, therefore, compels a contrary finding -that is, a finding that his income was less than the trial court found-as husband must do to prevail on that argument.

In short, husband does not articulate any argument that does not involve reconsidering the facts found by the trial court. Ultimately, rather than contend that there is no evidence from which a factfinder could find that his monthly income from VR is $ 55,000, husband simply urges us to evaluate the evidence differently than the trial court did, which we cannot do here.

Husband next assigns error to the trial court's award of $ 12,500 per month in spousal maintenance support. To provide context for that assignment of error, we first set out the pertinent legal framework.

ORS 107.105(1) governs a trial court's support awards; as relevant here, it provides:

"Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment:
"* * * * *
"(d) For spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both. *** In making the spousal support order, the court shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision. The court may order:
"* * * * *
"(C) Spousal maintenance as a contribution by one spouse to the support of the other for either a specified or an indefinite period. The factors to be considered by the court in awarding spousal maintenance include but are not limited to:
"(i) The duration of the marriage;
"(ii) The age of the parties;
"(iii) The health of the parties, including their physical, mental and emotional condition;
"(iv) The standard of living established during the marriage;
"(v) The relative income and earning capacity of the parties, recognizing that the wage earner's continuing income may be a basis for support distinct from the income that the supported spouse may receive from the distribution of marital property;
"(vi) A party's training and employment skills;
"(vii) A party's work experience;
"(viii) The financial needs and resources of each party;
"(ix) The tax consequences to each party;
"(x) A party's custodial and child support responsibilities; and
"(xi) Any other factors the court deems just and equitable."

We review the trial court's ultimate determination as to what amount of spousal support is "just and equitable" for abuse of discretion. Bailey and Bailey , 248 Or. App. 271, 275, 273 P.3d 263 (2012). Thus, "[w]e will uphold a support award if, given the findings of the trial court that are supported by the record, the court's determination that an award of support is 'just and equitable' represents a choice among legally correct alternatives." Andersen and Andersen , 258 Or. App. 568, 570, 310 P.3d 1171 (2013) (some internal quotation marks omitted). No one factor is dispositive. Arand and Arand , 182 Or. App. 368, 374, 49 P.3d 799 (2002). In a long-term marriage such as this one, the primary goal of spousal maintenance is to provide a standard of living comparable to that enjoyed during the marriage. Mallorie and Mallorie , 200 Or. App. 204, 219-20, 113 P.3d 924 (2005), rev. den. , 340 Or. 18, 128 P.3d 1122 (2006).

Husband's second assignment of error specifically contends that "[t]he award of $ 12,500 per month spousal support is not just and equitable, considering Husband's income, and Husband's other obligations." He does not, however, explain why, under the statutes and case law, that is so. He does not, for example, address the statutory factors governing the court's exercise of discretion and clearly articulate how the proper application of each or any of those factors would compel a different result. See Berg , 250 Or. App. at 2, 279 P.3d 286 ("We will not disturb the trial court's discretionary determination unless the trial court misapplied the statutory and equitable considerations required by ORS 107.105."). Instead, husband's argument in support of his second assignment consists largely of a litany of case quotations and broad legal principles, without any indication as to how the cited cases apply here or lead to the conclusion that an award of $ 12,500 per month in spousal support in this case does not "represent a choice among legally correct alternatives."

As best we can discern, the only cognizable argument presented by husband's second assignment of error-that is, the only argument that is not dependent upon de novo review of the facts-is that the trial court erred in basing wife's spousal support on husband's projected income from VR, when the court had already awarded half the value of those earnings to wife in the property division; in other words, it was outside the range of the trial court's discretion to "double-count" the income stream from VR in wife's favor-once, in awarding her half the value of the income stream in an equalizing judgment and, a second time, by using the full value of that income stream as husband's income for purposes of determining her spousal support award.

Specifically, husband contends in his opening brief:

"The value of [VR] ultimately is divided equally between Husband and Wife as part of the property division. Since the future income of [VR], over and above compensating Husband for his ongoing efforts, is already divided between the parties in advance, it should not be counted a second time as part of Husband's income.[ ]
"Husband's support obligation should be based on his ability to earn $ 200,000 per year ($ 16,667 per month).[ ] Additional income that he has historically received and will continue to receive in the future as owner of [VR] is in the nature of property interests which he and Wife have both received. Husband should not be required to pay support from the property awarded to him[.]"

Responding to wife's contention that our case law holds otherwise, husband explores that argument somewhat further in his reply brief. He explains that, because the value of the business here was based "primarily on the expected future income of the business, not on the value of its assets," this case is distinguishable from other cases in which we have favorably discussed spousal support awards based on income received from businesses in which ownership has been divided between the parties. See Goebel and Goebel , 56 Or. App. 52, 641 P.2d 59 (1982) (explaining that a spouse's professional practice is a marital asset the value of which should be taken into account when making a property division even if the practice is the source of money to pay spousal support; the professional's "ability to earn income will not be diminished by so doing"); see also Baumgartner and Baumgartner , 95 Or. App. 723, 725, 770 P.2d 965, rev. den. , 308 Or. 382, 780 P.2d 735 (1989) (holding that the trial court erred in not considering the husband's dental practice a marital asset, although it was also the source of money for the husband to pay spousal support). Husband contends that those cases are not controlling because, in each instance, unlike here, "[n]either Wife's share of the business as property nor her support award was based on the total income of the business itself."

We understand husband's contention to be that the portion of VR's appraised value that was based on its likely future earnings and awarded to wife as property cannot, as a matter of law, be included in husband's income for purposes of determining a "just and equitable" amount of spousal support. And, consequently, the trial court abused its discretion in awarding the amount of support that it did. Although there is a logical appeal to husband's argument-aspects of which our earlier cases may not wholly foreclose-this case does not present an opportunity to consider that argument further. That is because, as wife points out, husband did not preserve that argument before the trial court. See ORAP 5.45(1) (except for discretionary plain error review, which has not been requested here, appellate court will not consider claim of error that was not preserved in lower court).

In a preservation section of his opening brief, husband asserts that he preserved his second assignment of error by "argu[ing] at trial for a reasonable spousal support award." Husband cites five pages from the trial transcript as support for that assertion. However, as far as spousal support is concerned, those pages reflect only that husband argued to the trial court that he would be unable to pay an equalizing judgment along with spousal support and other debts as wife had proposed; that it was not just and proper in the circumstances to require him to do so; and that the court "will need to make a determination of what [spousal support] is, keeping in mind that [husband] with his obligations has to maintain a standard of living also." Those assertions did not fairly present the trial court with the nuanced and fact-intensive "double-counting" argument that husband makes on appeal.

Moreover, this is not a case in which husband lacked an opportunity to bring his argument to the attention of the trial court. See, e.g. , Schwartz and Battini , 296 Or. App. 870, 875, 440 P.3d 92 (2019). As detailed above, after trial, the court issued a proposed decision, including findings of fact and conclusions of law, in which the court proposed essentially the same distribution of VR's ownership and value and the same award of spousal support as it did in its final judgment. That is, the court awarded ownership of VR to husband, awarded wife half of VR's appraised value of $ 2.8 million in an equalizing judgment, and ordered husband to pay $ 12,500 per month in spousal support to wife based on his expected earnings, which corresponded directly to VR's net income stream. Although husband objected to that proposed decision, he did not, either in his written objections or at the ensuing hearing, raise the argument that he now makes on appeal-that awarding both (1) the value of VR's income stream as marital property and (2) spousal support based on that income stream constituted unlawful double-counting. Rather, husband focused exclusively on the trial court's refusal to reduce the monthly value of the income stream by $ 14,000, the amount that husband contended went to the payment of VR's business debts.

As a result, wife had no opportunity in the proceedings below to respond to the proposition husband asserts on appeal-that it was error for the trial court to attribute to him the full value of VR's business earnings as income in assessing spousal support and that, instead, the court should consider husband's income to be $ 200,000. Of equal significance, the trial court had no opportunity to consider the question and, if warranted, correct its error. Under those circumstances, the important policy goals underlying the preservation requirement have not been satisfied. John Hyland Const., Inc. v. Williamsen & Bleid, Inc. , 287 Or. App. 466, 472, 402 P.3d 719 (2017) ("[T]he requirement that an appellant have preserved the claim of error that it presents on appeal is a fundamental principle of appellate jurisprudence, serving the important policy goals of fairness to the parties and the efficient administration of justice."); Dew v. Bay Area Health District , 248 Or. App. 244, 252, 278 P.3d 20 (2012) ("To preserve an issue for appeal, a party's explanation of its position [to the trial court] must be specific enough to ensure that the court can identify its alleged error with enough clarity to correct the error immediately, if correction is warranted." (Internal quotation marks omitted.)). Given the absence of any showing that those principles are satisfied here, we conclude that husband's argument that the trial court erred in assessing spousal support based on the full amount of his expected earnings from VR is not preserved.

One final note is warranted in regard to this assignment of error. At oral argument-with different counsel-husband raised another argument as to how the trial court had abused its discretion in ordering him to pay $ 12,500 in spousal support. That, counsel argued, was because, even assuming husband's monthly income is $ 55,000, when the court's spousal support award is considered along with husband's other obligations, including income and payroll taxes, he is left with "essentially no money to service his own personal expenses," a result that is inconsistent with our case law. Although the wording of husband's assignment of error itself suggests that argument-"The award of $ 12,500 per month spousal support is not just and equitable, considering Husband's income, and Husband's other obligations"-and it appears that he preserved that argument in the trial court, husband did not pursue that theory in his opening brief. Indeed, even in husband's reply brief that argument is far from fully developed. Rather, in the context of his "double-counting" argument, he simply quotes Garza and Garza , 201 Or. App. 318, 329, 118 P.3d 824 (2005), for the proposition that "a spousal support obligation that exceeds the paying spouse's ability to pay is excessive." It was not until oral argument that husband clearly articulated that theory, detailing the obligations ordered by the trial court against his assessed income. That was too late. We do not consider appellate arguments-even if properly preserved-that are made on appeal for the first time during oral argument. Clinical Research Institute v. Kemper Ins. Co. , 191 Or. App. 595, 608-09, 84 P.3d 147 (2004) ("[R]egardless of whether the alternative theory of error was preserved, plaintiff failed to raise it in its opening brief on appeal. We generally will not consider a basis as to why the trial court erred that was not assigned as error in the opening brief but was raised for the first time by way of reply brief. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 380-81, 823 P.2d 956 (1991) ; ORAP 5.45(1)."); see also State v. Jones , 184 Or. App. 57, 60 n. 2, 55 P.3d 495 (2002) ("At oral argument, defendant contended for the first time on appeal that the charged offenses were not of the same or similar character. Because defendant did not raise that issue in his opening brief, we decline to reach it here.").

We turn, briefly, to husband's third assignment of error. He asserts that the trial court erred in setting child support based on an incorrect finding as to husband's income and a spousal support award that was too high. Given that, in resolving husband's other assignments of error, we have rejected husband's premises-that the trial court erred in assessing his income and in determining the amount of spousal support-husband's third assignment necessarily fails as well. Accordingly, we affirm the judgment of the trial court.

Affirmed.

      Subject to the Chief Justice's approval, judicial districts may establish panels of reference judges to try civil actions in circuit court. ORS 3.300. The rules that govern that process are set out in ORS 3.300 to 3.321. Under ORS 3.305(1), the parties may request referral of their action to a reference judge on the panel, and the presiding judge must order it. The reference judge's final judgment becomes the judgment of the court. ORS 3.315(6). Accordingly, we refer to the reference judge as "the trial court" or "the court" in this opinion.

      The court found wife's gross income to be $ 625 per month from rental income. It ultimately revised that finding to $ 4,845 per month-$ 625 in rental income and $ 4,220 in interest income on the money award. Wife's income is not at issue on appeal.

      The court also ordered wife to apply for Social Security disability and PERS disability, noting that "any substantial award of disability payments to her shall be deemed a change in circumstances, and shall allow for a reconsideration of the appropriate amount of Wife's spousal support."

      With the court's permission, husband later filed amended objections; this argument, however, remained the same.

      In his supplemental memorandum, husband reiterated his argument regarding the unaccounted for debt service and suggested that an appropriate spousal support award would be $ 8,500 per month.

      The court also stated that it was
      "treating the parties' combined income from VR as if it were husband's alone for three reasons. First, husband historically has exercised de facto complete control over all income from VR, second, all of VR will be allocated to husband under this court's judgment, and third, husband's personal efforts are at least largely responsible for the development and maintenance of that stream of income."

      Husband does not argue on appeal that the child support guidelines account for his lack of parenting time by increasing the amount of his monthly obligation, nor does he contend that the trial court overstated wife's burden in meeting the daily needs of "the children," since only one child remains at home.

      See ORS 3.315(6) ("Upon receipt of the final written report by the clerk of the court, the referral of the action shall terminate and the presiding judge shall order the judgment contained in the report entered as the judgment of the court in the action."); ORS 3.316(7) ("The judgment of the reference judge entered as provided in subsection (6) of this section may be appealed in the same manner as a judgment of the circuit court in a civil action.").

      For example, he argues:
      "The trial court concluded that Husband would be able to earn $ 55,000 per month, $ 660,000 per year going forward, an amount which exceeds his best historical year, and exceeds a reasonable average of several years. Even under the 'any evidence' standard, it appears the court misread the data to come to this conclusion." (Emphasis added.)

      We also note that the trial court appears to have calculated its spousal support award based on husband's earning capacity being $ 43,500 per month, not $ 55,000. In its proposed decision, the trial court found husband's monthly income to be $ 43,500 and awarded wife $ 12,500 per month in spousal support. Although in its final decision the court found that husband's monthly income was higher-$ 55,000-the court did not correspondingly increase that support award.

      Husband also hints at this argument in connection with his first assignment of error. In arguing that the evidence does not support the court's factual finding that husband's income is $ 55,000, he states:
      "The court attributes all of the income of [VR] to Husband, as sole owner, combining historical amounts for interest payments, guaranteed payments, and net business income. However, this is a measure of the total income of [VR], and the court also awarded Wife an equal portion of the value of [VR], in dollars, payable by Husband, as a property equalizing award. Wife effectively receives half of the business with payments structured over fourteen years of amortized payments, including interest."

      The $ 200,000 figure apparently refers to an estimate of the market value of a chief executive officer's time and work for a business similar to VR that the parties' joint appraiser used in assessing the value of VR.

      Wife also responded that husband never raised that argument in the trial court, and that the $ 200,000 market salary figure used for the sole purpose of adjusting the appraisal is "attenuated and wholly unrelated to the facts of this case."

      We express no opinion on the correctness of that assertion.

      We note that, in addition to the income disparity between the parties, the trial court also relied on other ORS 107.105(1) factors in arriving at its spousal support award, including wife's health and her custodial and child support responsibilities.

      Under the Oregon Rules of Appellate Procedure, each assignment of error must "specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court," ORAP 5.45(4)(a)(i), and set out pertinent quotations of the record where the issue was raised and the ruling was made, ORAP 5.45(4)(a)(ii).

      Husband also urged the trial court to fashion a remedy involving the sale of VR. As indicated, on appeal, husband does not contest the trial court's property division.

      Husband never suggested to the trial court that $ 200,000 was the correct income amount to use, and, in any event, we are unclear why that would be the case. Even if we were to consider (and agree with) husband's unpreserved, "double-counting" argument, following that argument to its logical conclusion would, it seems to us, lead to a remand for the court to determine, as a matter of fact, the portion of VR's value that represents future earnings-as opposed to other assets-and reassess husband's income based on half of that amount . Indeed, that is the upshot of husband's position. He argues, for example, that, "[b]ecause the business was valued based primarily on its expected future income, and that value was divided between Husband and Wife as part of the property award, the total income of the business should not also be counted as available for Husband to pay support to Wife." (Emphasis added.)

      To the extent that husband argued in his opening brief that the trial court's support award exceeded his ability to pay, that argument was fact bound with his contention that the court should have assessed his income to be $ 200,000 annually, or $ 16,667 per month, which we have rejected. Before oral argument, husband never contended that, even assuming a monthly income of $ 55,000, he is unable to pay $ 12,500 in support.

      In any event, we generally do not consider arguments for reversal of a trial court's ruling raised for the first time in a reply brief. Belgarde v. Linn , 205 Or. App. 433, 438, 134 P.3d 1082, rev. den. , 341 Or. 197, 140 P.3d 580 (2006).


source: Caselaw Access Project

license: Public Domain

text:
    Tom BROWN, Petitioner, v. PARKS AND RECREATION DEPARTMENT, BY AND THROUGH STATE HISTORIC PRESERVATION OFFICE, Respondent.
    A165691
    Court of Appeals of Oregon.
    Argued and submitted October 30, 2018. April 3, 2019
    Nathan R. Morales argued the cause for petitioner. Also on the opening brief were Perkins Coie LLP and James E. Mountain, Jr., and Harrang Long Gary Rudnick P.C. On the reply brief were Nathan R. Morales, Laura F. Segal, and Perkins Coie LLP, and James E. Mountain, Jr., and Harrang Long Gary Rudnick P.C.
    Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Brewer, Senior Judge.
   BREWER, S. J.

In this rule challenge under ORS 183.400(1), petitioner contends that information published online by the Oregon Parks and Recreation Department, through its State Historic Preservation Office (SHPO), describing property owners eligible to concur in or object to a nomination of property for inclusion in the National Register of Historic Places constitutes a "rule" within the meaning of the Administrative Procedures Act (APA), ORS 183.310 to 183.690, and is invalid because SHPO failed to comply with applicable rulemaking procedures. We conclude that the part of the published information-hereafter referred to as "the ownership counting standard" or "the standard"-that designates trusts as eligible owners is invalid.

The National Park Service (NPS) administers the National Register Program. 36 CFR § 60.3(h). Nominations submitted by State Historic Preservation Officers, prepared under approved State Historic Preservation Programs, and approved by NPS, are one way that the NPS adds properties to the National Register of Historic Places. 36 CFR § 60.1 (b)(3) ; see ORS 358.612(5) ; ORS 358.617. To implement the program, existing federal regulations and SHPO rules establish a procedure by which properties may be added to the National Register. A state SHPO must give "owners of private property an opportunity to concur in or object to a listing." 36 CFR § 60.6(b). It is "the responsibility of [SHPO] to ascertain whether a majority of owners of private property have objected." 36 CFR § 60.6(g). As pertinent here, a federal regulation defines "owner or owners" as

"those individuals, partnerships, corporations or public agencies holding fee simple title to property. Owner or owners does not include individuals, partnerships, corporations or public agencies holding easements or less than fee interests (including leaseholds) of any nature."

36 CFR § 60.3(k) (emphasis added). SHPO, as part of the Oregon Parks and Recreation Department, adopted by reference the 1994 version of 36 CFR section 60, which is identical to the current version. OAR 736-050-0220.

In May 2017, SHPO submitted the nomination of petitioner's neighborhood for historic district designation to NPS. SHPO advised NPS of its "opinion that the proposed Eastmoreland Historic District (District) is eligible for listing in the National Register of Historic Places," but "due to procedural inconsistencies in the tallying of property owners within the District," SHPO could not "provide a reliable list of property owners eligible to object to the proposed listing." SHPO specifically noted that, despite several attempts to determine the total number of owners in the district, it could not decide how to properly count the owners.

NPS returned the nomination at SHPO's request so that SHPO could continue its effort to make an accurate count of total property owners and total objections. In returning the nomination, NPS advised SHPO that state law governs the determination of property ownership for purposes of an historic district nomination and that SHPO should refer any ownership questions to an authorized state official.

After the nomination was returned to SHPO, it published the challenged ownership counting standard on its website. The standard, which is entitled "How to count owners for historic districts," provides:

"A husband and wife are both listed as owners-each gets a vote and their vote is counted separately. If only one spouse is listed in the records as owner, that person gets one vote.
"Several people own one property and each is recorded as an owner-each gets one vote.
"A person owns several properties within the nominated boundary-that person gets one vote, regardless of how many properties he or she owns.
"A partnership is listed as an owner-the partnership is considered one owner and it gets one vote (regardless of how many partners there are).
"A corporation is listed as an owner-the corporation gets one vote.
"A trust is listed as an owner-the trust is considered one owner and it gets one vote.
"A condominium is included within the nominated boundary. The owners of individual units in a condominium hold fee simple title to their property, and therefore are considered owners under the notification provisions of National Register regulations. Each owner of a condominium unit listed in the official land recordation or tax records gets one vote. In addition, the condominium association may be considered one owner for notification purposes if the common areas of the condominium property are owned in fee simple title by that entity.
"A co-operative (co-op) is included within the nominated boundary. Those individuals participating in a co-operative are part of a corporation and do not hold fee simple title-the co-operative gets one vote.
"A district which includes both public and private property owners. Example, a district includes 100 owners (four public property owners and 96 private property owners). For purposes of owner concurrence or objection, only the 96 private property owners' votes must be tabulated. If 49 of the private property owners (51% of 96) object, the property cannot be listed."

It is undisputed that SHPO did not comply with the APA's rulemaking requirements before it published the ownership counting standard. The only issue before us is whether the standard constitutes a "rule" and, therefore, SHPO was required to comply with rulemaking procedures before adopting it. The parties agree on the legal principles that govern the issue but differ with respect to their application here. As noted, petitioner asserts that the ownership counting standard is a rule because it amplifies and refines the definition of "owner" in the federal regulation that SHPO adopted and incorporated in its existing rule. In particular, petitioner contends that the standard amplifies and refines the existing rule by (1) including an example, thereby limiting the definition of owner to the terms listed in the example, and (2) adding trusts to the list of eligible voting owners. SHPO replies that the ownership counting standard is not a rule because: (1) it does not amplify and refine the meaning of owner in the existing rule but, instead, merely reflects a necessary application of the existing rule and (2) any expansion of the meaning of owner in the standard was required under federal policy guidance adopted by NPS and did not constitute an exercise of discretion by SHPO that required compliance with rulemaking procedures.

Our determination whether the standard constitutes a rule is governed by ORS 183.310, which provides, in part:

"(9) 'Rule' means any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior rule, but does not include:
"(a) Unless a hearing is required by statute, internal management directives, regulations or statements which do not substantially affect the interests of the public:
"(A) Between agencies, or their officers or employees; or
"(B) Within an agency, between its officers or between employees.
"(b) Action by agencies directed to other agencies or other units of government which do not substantially affect the interests of the public."

Our review under ORS 183.400 "is limited to the face of the rule and the law pertinent to it." Confederated Tribes v. Dept. of Fish and Wildlife , 244 Or. App. 535, 538, 260 P.3d 705 (2011) (internal quotation marks and citation omitted). "We may declare a rule invalid only if we conclude that the rule violates constitutional provisions, exceeds the agency's statutory authority, or was adopted without compliance with applicable rulemaking procedures." Smith v. TRCI , 259 Or. App. 11, 13, 312 P.3d 568 (2013) ; see ORS 183.400(4).

An agency's explanation of how "a validly promulgated rule operates in a specific context need not itself be promulgated as a rule if the unpromulgated elaboration merely explains what is necessarily required by the rule to which it applies." Smith v. TRCI , 259 Or. App. at 25, 312 P.3d 568. In other words, if an agency merely "provid[es] information about an existing administrative rule," then "there is no rule to review." Smith v. DCBS , 283 Or. App. 468, 471, 388 P.3d 1253, rev. den. , 361 Or. 350, 393 P.3d 1182 (2017). However, " 'the interpretive amplification or refinement of an existing rule is a new exercise of agency discretion and must be promulgated as a rule under the APA to be valid.' " Smith v. TRCI , 259 Or. App. at 25, 312 P.3d 568 (quoting Burke v. Public Welfare Div. , 31 Or. App. 161, 165, 570 P.2d 87 (1977) ). If a rule "is susceptible to reasonable interpretations other than [that given by the agency]" in purporting to apply it, then it has been amplified and refined. Smith v. TRCI , 259 Or. App. at 25, 312 P.3d 568 (citation omitted).

In light of those principles, we consider petitioner's arguments in the order made. The example to which petitioner refers in his first argument reads as follows:

"[A] district includes 100 owners (four public property owners and 96 private property owners). For purposes of owner concurrence or objection, only the 96 private property owners' votes must be tabulated. If 49 of the private property owners (51% of 96) object, the property cannot be listed."

In arguing that the quoted example amplifies and refines the existing rule, petitioner relies on this court's decision in Smith v. Dept. of Corrections , 276 Or. App. 862, 369 P.3d 1213 (2016) ( Smith v. DOC ). At issue in that case was a Department of Corrections (DOC) health policy that "establishe[d] the method and guidelines used to determine whether treatment will or will not be provided [to inmates] by DOC." Id. at 867, 369 P.3d 1213 (internal quotation marks omitted; second brackets in Smith v. DOC ). That policy defined the same four levels of health care as an applicable federal regulation, and additionally gave "examples of the types of medical conditions that fall within the definition." Id. at 868, 369 P.3d 1213. The court explained that levels of care in the policy were not "self-defining," i.e. , that "the rule define[d] levels of care in a manner that require[d] health care providers to make judgments with certain general criteria in mind." Id. at 872, 369 P.3d 1213 (internal quotation marks and citation omitted). The court held that DOC's policy was a rule because the examples of medical conditions attached to the definition of each level of care constituted at least a refinement of the federal regulation and thus required compliance with the APA. Id.

Here, in contrast to the circumstances in Smith v. DOC , the quoted example of counting concurrence with, or objection to, a nomination of property in a district with four public property owners and 96 private property owners merely provides a straightforward application without amplification of the existing federal rule, which provides that all "owners of private property" (but not public property) must be given an opportunity to concur with or object to a listing and that both private individuals and public agencies count as owners with respect to private property. Moreover, the example does not by its terms limit the universe of eligible voters to private individuals or public agencies. It is merely a nonexclusive illustration of the application of the existing rule. As a consequence, the example does not support petitioner's argument that promulgating the ownership counting standard required a new rulemaking process.

In his second argument, petitioner asserts that including trusts in the ownership counting standard amplified and refined the existing rule, which did not list trusts among a finite population of "owners"-"individuals, partnerships, corporations or public agencies." 36 CFR § 60.3(k) ; OAR 736-050-0220. According to petitioner, in adding trusts to the list of eligible voting owners, the standard impermissibly expanded the existing rule to yield a different result from that prescribed by the rule. Smith v. DOC , 276 Or. App. at 872, 369 P.3d 1213. SHPO replies that in adding trusts, it merely pronounced how the existing rule "operates in a specific context" where "the existing rule necessarily requires the result set forth in that pronouncement." See Burke , 31 Or. App. at 165, 570 P.2d 87 (holding that compliance with rulemaking procedures is not required in such circumstances).

In Smith v. DOC , this court held that a provision in a Department of Corrections' health policy requiring a "committee to review any procedure exceeding $50,000 [was] a refinement of the rule, if not an outright addition to the rule." 276 Or. App. at 872, 369 P.3d 1213. As we explained,

"[t]he rule itself mentions cost of procedure only once-defining Level 4 care as 'valuable to a certain individual but *** significantly less likely to be cost effective or to produce substantial long term improvement.' Other than that reference, there is nothing in the provisions of [the general rule] that indicates any limitation on a procedure based on the fact that its cost exceeds a particular dollar amount."

Id. at 872-73, 369 P.3d 1213 (ellipsis in Smith v. DOC ).

Here, as was the circumstance in Smith v. DOC , the standard's inclusion of trusts as owners was not an "informal embellishment" or a "pronouncement" of how the existing rule operates in a specific context that "necessarily requires the result set forth in that pronouncement." To reiterate, the existing rule confines the term "owner" to a finite set-"those individuals, partnerships, corporations or public agencies holding fee simple title to property." Adding another type of entity-trusts-to that finite definitional set amounted to "an interpretive amplification" of the definition of "owner" in the governing rule. Stated differently, nothing in the text or context of the existing rule necessarily required treating trusts as owners. Including trusts as owners for the purpose of voting on a nomination for inclusion in the National Register, therefore, required a properly adopted rule.

In sum, we conclude that the part of the ownership counting standard published on SHPO's website that adds trusts to the list of eligible owners for the purpose of voting on nominations of districts for inclusion in the National Register of Historic Places constitutes a rule. Because SHPO promulgated the standard without complying with rulemaking procedures, see ORS 183.400(4)(c), the provision of the standard that designates trusts as eligible owners is invalid.

Provision of State Historic Preservation Office's ownership counting standard that designates trusts as eligible owners held invalid.

      ORS 183.400(1) provides, in part:
      "The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases."

      Oregon Parks and Recreation Department, How to count owners for historic districts , https://www.oregon.gov/oprd/HCD/NATREG/docs/Eastmoreland%20Historic%20District/HowToCountOwnersForHistoricDistricts.pdf (accessed Mar 27, 2019) (underscoring in original).

      Petitioner asserted for the first time in his reply brief that the standard's inclusion of condominium associations as owners impermissibly amplified and refined the existing federal rule because, under Oregon Law, condominium associations are unincorporated associations and the latter are not listed as owners in the existing rule. See ORS 100.405(1)(b)(B) (defining "condominium association" as including "unincorporated association"). Because that argument was not raised or adequately developed in petitioner's opening brief, we do not consider it here. See, e.g. , Karuk Tribe of California v. TriMet , 241 Or. App. 537, 548, 251 P.3d 773 (2011), aff'd , 355 Or. 239, 323 P.3d 947 (2014) ("[A]s we have often had occasion to remind others, '[a] party may not raise an issue for the first time in a reply brief.' " (Citation omitted.)). Petitioner's "trust as owner" argument, however, was properly raised for the first time in his reply brief because it was a "logical reply" to an argument that SHPO made in its answering brief. See Stewart v. Kralman , 240 Or. App. 510, 516, 248 P.3d 6 (2011) (explaining that petitioner was not barred from raising trespass argument for the first time in his reply brief because it was "the logical reply to plaintiff's assertion that the driveway was closed to the public"). In particular, SHPO argued in its answering brief that because NPS wrote a letter stating, in pertinent part, that " 'the owner of a property for purposes of objecting to a National Register nomination is: a trust and not its trustees ***.' SHPO need not engage in rulemaking to relay guidance developed by the National Park Service." (Emphasis in original.) Therefore, the issue whether SHPO engaged in rulemaking by including trusts as owners in the ownership counting standard is properly before us.

      Petitioner argues that SHPO adds "examples" to the definition of owner. There is only one example, however, in the ownership counting standard, the one to which we refer.

      As noted above, SHPO urges us to consider certain "guidance" documents from NPS that it attached to its brief in support of its argument that adopting the ownership counting standard did not require compliance with rulemaking procedures. In particular, one of the documents-a 2003 letter to SHPO from an NPS representative-stated that the owner of a property for purposes of objecting to a National Register nomination is "a trust and not its trustees," "a corporation and not its shareholders," and "a partnership and not its partners." SHPO argues that "to the extent the information on the website about how to count owners expands on the federal regulations, it reflects federal policy adopted by the National Park Service and not SHPO."
      The difficulty with SHPO's argument is that neither that letter nor anything else in the record indicates that it or any of the other proffered documents are binding on SHPO, either because they are mandatory federal regulations or pursuant to any other source of law. In sum, insofar as they refer to trusts, the proffered documents do not support SHPO's position.

      We emphasize that our conclusion should not be understood as a holding that SHPO either has or lacks authority to validly adopt by rule an ownership counting standard that includes trusts as owners.


author: SHORR, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Matthew A. FUDGE, Defendant-Appellant.
    A164348
    Court of Appeals of Oregon.
    Argued and submitted October 31, 2018. May 30, 2019
    Zachary Lovett Mazer, 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.
    Joanna Hershey, Assistant Attorney General, argued the cause for respondent. Also on the briefs 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 from a judgment entered after a jury found him guilty of first-degree sodomy (Count 1), ORS 163.405, and first-degree sexual abuse (Count 2), ORS 163.427. Defendant assigns error to the trial court's imposition of a 300-month mandatory minimum sentence of imprisonment under ORS 137.700 on Count 1, on the ground that the sentence violates Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. We address that assignment below. Defendant also assigns error to the court's denial of a requested "witness false in part" instruction, which we reject without further discussion. UCrJI 1029. For the following reasons, we remand for reconsideration of defendant's sentence and otherwise affirm.

In 2015, defendant was a 30-year-old man with a lifelong history of intellectual disability who lived in Reno, Nevada, with his elderly grandparents. Defendant's primary source of income was Social Security benefits, and his grandparents were designated as his official guardians and Social Security payees. In the summer of 2015, defendant traveled with his grandparents from Reno to Oregon to visit with family. They stayed in a camper trailer parked outside the home of K, a four year old. The day before the visit was planned to end, the family held a cookout at K's home. During the cookout, K's mother (defendant's cousin) noticed that K was missing. She yelled for her son, and she heard defendant respond from around the corner, "He's with me." Defendant and K then returned through a gate in the yard, coming from the direction of the camper.

After defendant and his grandparents left, K's mother noticed a bruise on K's penis when she was giving him a bath. She asked K what happened, and he told her that defendant "took him to the trailer and pulled his pants down and licked and bit his wiener." K's mother then took two videos of K with her cell phone. In the videos, K again said that defendant bit and licked him, and that defendant "tried to stop me when I was trying to tell mommy when she was inside." K said that defendant told him, "Racecar go. Racecar stop. Don't tell mommy." K was referred to CARES Northwest by his pediatrician, where he underwent a physical examination and forensic interview. K told the examiner that defendant licked and bit his penis.

In a pretext phone call, K's father confronted defendant about having sexual contact with K. Defendant told him, "I didn't do that. I'm not that way. I don't do stuff like that." A Reno police detective, working in conjunction with Washington County law enforcement, interviewed defendant, and defendant again denied having sexual contact with K. The Reno detective's report reflected that defendant stated

"that he had been around kids a long time and he had never done 'stuff,' and he had never been curious. He added [that] he was not interested in sexual stuff 'cuz it's bad and I don't do it cuz I'm always busy working and making money.' He then said that sexual stuff was bad because, 'you get in trouble and it would be on your record.'
"*** He added [that] he had never had sexual intercourse with anyone, and that if he was curious about something sexual, he would ask his grandparents."

Defendant was charged with first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427. A jury found defendant guilty of both crimes. At sentencing, defendant argued that the imposition of a 300-month sentence was unconstitutionally disproportionate, as applied to defendant, because of defendant's intellectual disability. In support of his argument, defendant submitted to the trial court a psychological evaluation, performed by Dr. Colistro.

Colistro reviewed defendant's education and mental health records. The records showed that defendant had been diagnosed with mental retardation in 1998. Defendant underwent an IQ test in 1999 that yielded a full-scale IQ of 46, which is below the first percentile. Colistro reviewed a psychological evaluation from 1999, which stated that

"[defendant] is functioning with very limited cognitive ability... at the first grade level academically. Adaptive functioning level is 2/3rd of his chronological age... [Defendant] has been receiving special services as developmentally delayed and under mental retardation since he entered school... failed to master developmental milestones as a toddler and his lack of cognitive ability and functioning skills are documented from preschool years... evaluation of intellectual functioning ... indicates a full scale intelligence quotient two or more standard deviations below the mean..."

(Ellipses in original.) Colistro also reviewed police records. In one police report, a Washington County Sheriff's deputy, Chedester, wrote of receiving "psychological and special education reports" from defendant's grandmother. As described in Colistro's report, Chedester's report described those documents as revealing that defendant

"functions at the first grade level academically in spite of being thirty years of age. His Communication Skills Score Equivalent is that of a four-six year old. His activities of daily living are at the level of a seven to eleven year old. Composite scores provide an equivalent [age] of eight years [old]."

Defendant had a special-education curriculum in public school, and during high school was given a job in the cafeteria in lieu of attending classes beyond the scope of his abilities. Defendant graduated with a special diploma and a "straight A average," although he never learned to read or write. His family reported that he functions at about a first-grade level.

Colistro performed a psychosexual violence risk assessment. Defendant scored very low overall for risk of recidivism. The assessment revealed "the absence of any criminal proclivities in general or sexually deviant proclivities in particular" in defendant. Colistro concluded that defendant was a "severely developmentally delayed individual who will function socially at the level of a child for the rest of his life." Regarding defendant's understanding of his crime, Colistro concluded that

"it is commonplace for individuals with [defendant's] severe level of impairment to engage in sexual activities with others functioning at about their same level intellectually and socially. Such children essentially form an intellectually and socially impaired adult peer group. [Defendant] is comfortable with them, since he operates mentally at the same concrete, simplistic level as they do."

Defendant relied on Colistro's report to argue to the trial court at the sentencing hearing that the mandatory minimum sentence was unconstitutionally disproportionate in light of defendant's severe intellectual disability, his lack of criminal history, and his low risk of recidivism.

The state argued that the imposition of a 300-month sentence for first-degree sodomy was not constitutionally disproportionate as applied to defendant because, despite his intellectual disability, defendant understood the wrongful nature of his conduct. The state submitted a presentence investigation report, which accounted for Colistro's evaluation and defendant's limited cognitive abilities but concluded that the 300-month mandatory minimum sentence was appropriate. The report asserted that defendant was "very well aware of the legal consequences of his actions" because defendant stated that he had "been taught that sexual contact with minors was inappropriate and 'was bad because you get in trouble and it would be on your record,' according to police reports." The state acknowledged that it was "possible" for the trial court to depart from the mandatory minimum sentence but argued that, in this case, doing so would be inappropriate because of the age of the victim and the fact that defendant "clearly understands the nature of the crime."

The trial court followed the recommendation of the state and imposed the mandatory minimum sentence of 300 months for Count 1 and 75 months for Count 2, to be served concurrently, for a total of 300 months in prison. The court ruled that a 300-month sentence was not constitutionally disproportionate, reasoning as follows:

"So on Count 1 there is the statutory requirement that I impose the 300-month sentence. Given the nature of this crime, the fact that there was an extremely vulnerable victim-and I will take into account, obviously, [defendant's] limited abilities.
"However, I do believe that this type of individual is going to be around small children, and these are vulnerable victims, and I don't see anything, based on the legislative intent and the Court of Appeals rulings, that there's any reason to depart from that mandatory sentence."

Defendant now appeals his 300-month sentence for Count 1, arguing that ORS 137.700 is constitutionally disproportionate as applied to him because of his severe intellectual disability.

We review a trial court's decision that a sentence is constitutionally proportionate under Article I, section 16, for legal error, and we accept the trial court's findings of historical fact if they are supported by evidence in the record. State v. Ryan , 361 Or. 602, 614-15, 396 P.3d 867 (2017). Defendant raises arguments under Article I, section 16, and the Eighth Amendment. We first analyze whether defendant's sentence as applied to defendant was disproportionate under the Oregon Constitution, and we consider defendant's federal constitution claim only if we conclude that no state constitutional violation occurred. State v. Newcomb , 359 Or. 756, 764, 375 P.3d 434 (2016).

Article I, section 16, requires that "all penalties shall be proportioned to the offense." The driving principle for deciding whether a sentence is unconstitutional under Article I, section 16, is whether " 'the punishment [is] so proportioned to the offense committed [that it] shock[s] the moral sense of all reasonable [people] as to what is right and proper under the circumstances.' " State v. Wheeler , 343 Or. 652, 668, 175 P.3d 438 (2007) (quoting Sustar v. County Court of Marion County , 101 Or. 657, 665, 201 P. 445 (1921) ). The legislature has primary authority to determine the appropriate length of punishment for a given crime, and only in rare instances when the legislature has exceeded its authority may a court conclude that a particular punishment is constitutionally disproportionate. Ryan , 361 Or. at 612, 396 P.3d 867 ; State v. Althouse , 359 Or. 668, 683-84, 375 P.3d 475 (2016). The Oregon Supreme Court has identified the following three factors for determining whether a sentence is constitutionally disproportionate to the offense, as applied to a particular defendant:

"(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant."

State v. Rodriguez/Buck , 347 Or. 46, 58, 217 P.3d 659 (2009).

Defendant raises arguments under each of the three Rodriguez/Buck factors; however, given our resolution of defendant's argument under the first factor-that in light of defendant's intellectual disability, the gravity of his offense compared to the 300-month imprisonment sentence renders his sentence disproportionate under Article I, section 16-we need not address the others. Defendant argues that uncontroverted evidence in the record shows that defendant has the overall mental functioning of an eight year old. Because ORS 161.290 sets the minimum age for criminal liability at 12 years old, defendant argues, the 300-month minimum sentence, which may be constitutional as applied to an ordinary adult, is constitutionally disproportionate when applied to defendant because of his limited cognitive abilities. We do not resolve that issue here because, as discussed below, we conclude that the record does not demonstrate that the trial court considered the constitutional implications of defendant's limited cognitive abilities in deciding whether a 300-month sentence was proportionate.

The personal characteristics of a defendant are relevant when considering whether a penalty is constitutionally disproportionate as applied to that defendant. Rodriguez/Buck , 347 Or. at 62, 217 P.3d 659 ("[A] court may consider, among other things, the specific circumstances and facts of the defendant's conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim."). At the time that defendant was sentenced, our case law held that a defendant's intellectual capacity is a relevant personal characteristic that may be considered. After defendant was sentenced, however, the Supreme Court decided Ryan , 361 Or. at 621, 396 P.3d 867, in which it held that, when evidence of a defendant's intellectual disability is offered for the purpose of challenging the proportionality of a sentence under Article I, section 16, that evidence "must" be considered. See also State v. Allen , 294 Or. App. 301, 314, 432 P.3d 250 (2018) (case remanded for resentencing because record did not establish that the trial court in fact considered offender's intellectual disability when considering his as-applied challenge); State v. Sanderlin , 276 Or. App. 574, 368 P.3d 74 (2016) (the trial court erred in not considering the defendant's impaired intellectual functioning in determining the disproportionality of his sentence).

Regarding the extent to which a trial court must consider a defendant's intellectual disability on the record, the court held in Ryan that it was insufficient for the trial court to "generally note" the fact of an offender's intellectual disability; rather, the court must address the "constitutional implications" of a defendant's intellectual disability on the gravity of the sentence. 361 Or. at 624, 396 P.3d 867. The court acknowledged that, ordinarily, in the absence of express findings on the record, we presume that a trial court resolved factual disputes consistent with its ultimate conclusion. Id. (citing Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968) ). However, the court held that that presumption does not apply when a trial court fails to address on the record a defendant's intellectual disability in comparison to the gravity of the offense because "we would have to speculate to conclude that the court properly considered that factor and made any related factual findings with respect to it." Id. at 624-25, 396 P.3d 867.

Here, the state argues that, although the trial court's comment on defendant's disability was brief, the record reflects that the court considered defendant's disability when ruling that 300 months was a constitutionally proportionate sentence in keeping with the requirement set forth in Ryan . The state's argument fails because, after Ryan , we cannot presume in the absence of express findings that a trial court properly considered a defendant's intellectual disability in comparing the gravity of the offense with the severity of the sentence. Here, the record, at least, does not demonstrate that the court adequately considered defendant's disability when addressing the constitutional proportionality of a 300-month sentence, as applied to defendant.

Ryan illustrates that point. The defendant in that case pleaded guilty to, among other crimes, first-degree sexual abuse against a nine-year-old victim and a 14-year-old victim. 361 Or. at 604, 396 P.3d 867. The defendant had an IQ between 50 and 60, and uncontroverted evidence in the record indicated that the defendant's mental age was approximately 10 years old. Id. at 606, 396 P.3d 867. At sentencing, the defendant challenged the imposition of a mandatory-minimum 75-month sentence as disproportionate in violation of Article I, section 16. Id . The trial court "generally noted" that the defendant was intellectually disabled. Id. at 624, 396 P.3d 867. The Supreme Court reversed and remanded, reasoning that, although

"the trial court generally noted defendant's intellectual disability ***, the court did not address its implications in rejecting his proportionality challenge. That missing linkage is problematic, because it suggests that, although the court appeared to grasp the factual foundation of defendant's argument, it did not fully appreciate its constitutional implications."

Id . The court went on to explain that, although ordinarily we are to presume that the trial court resolved its factual disputes in a manner consistent with its ultimate decision, "where, as here, the court did not address defendant's intellectual disability in comparing the gravity of defendant's offense with the severity of the Measure 11 sentence, we would have to speculate to conclude that the court properly considered that factor and made any related factual findings with respect to it." Id. at 624-25, 396 P.3d 867 (citing Ball , 250 Or. at 487, 443 P.2d 621 ).

As to how a trial court is to consider a defendant's intellectual disability when analyzing the proportionality of a sentence, the court held that a one-size-fits-all approach is inappropriate. Instead, the court concluded that

"a sentencing court's findings, among other factual considerations, as to an intellectually disabled offender's level of understanding of the nature and consequences of his or her conduct and ability to conform his or her behavior to the law, will be relevant to the ultimate legal conclusion as to the proportionality-as applied to the offender-of a mandatory prison sentence."

Id . at 621, 396 P.3d 867. Therefore, when presented with the issue in making a proportionality analysis under Article I, section 16, and Rodriguez/Buck , a trial court must consider an offender's intellectual disability on the record, Allen , 294 Or. App. at 313, 432 P.3d 250, and in doing so it should consider the effect that the disability, if credited, has on the offender's ability to understand the nature and consequences of his or her conduct and ability to conform his or her behavior to the law.

As noted, here the trial court did not have the benefit of Ryan 's conclusions or its discussion of how a defendant's age-specific intellectual capacity, including the defendant's level of adaptive functioning, affects the proportionality of that defendant's sentence. At the sentencing hearing, the trial court announced that it was taking defendant's disability "into account," but it made no additional on-the-record statements regarding the effect that defendant's disability had on his ability to understand the wrongfulness of his conduct or conform his conduct to the law. Instead, the court emphasized the vulnerability of the four-year-old victim and the need to incapacitate defendant and specifically deter him from committing future crimes against other children:

"So on Count 1 there is the statutory requirement that I impose the 300-month sentence. Given the nature of this crime, the fact that there was an extremely vulnerable victim-and I will take into account, obviously, [defendant's] limited abilities .
"However, I do believe that this type of individual is going to be around small children, and these are vulnerable victims, and I don't see anything, based on the legislative intent and the Court of Appeals rulings, that there's any reason to depart from that mandatory sentence."

(Emphasis added.) While that emphasis was not improper, a trial court must also consider the "constitutional implications" of a defendant's disability on the proportionality of his or her sentence. Ryan , 361 Or. at 624, 396 P.3d 867. The record here, at least, does not reflect that the trial court-which did not have the benefit of Ryan when it sentenced defendant-met that requirement.

Ryan also emphasized the extent to which a defendant's level of adaptive functioning could diminish the penological aims of deterrence and retribution. 361 Or. at 618, 396 P.3d 867. The court questioned whether the defendant's adaptive functioning deficits, which were such that the defendant functioned at the approximate mental age of a 10 year old, limited the defendant's criminal responsibility, given that ORS 161.290(1) set the age for criminal responsibility at 12 years old. Id. at 623-25, 396 P.3d 867. A similar question is raised here, where the record shows that defendant has an "overall adaptive behavior composite assessment" equivalent to an eight-year-old child. Because the trial court did not have the benefit of Ryan , it could not adequately consider defendant's intellectual disability in the context of other case-specific factors, in assessing the proportionality of defendant's sentence. It is for the trial court to make this assessment in the first instance.

Although the trial court stated that it was accounting for defendant's disability in making its determination, there is no indication on this record how the court viewed the implications of defendant's disability on his proportionality challenge, or whether it fully considered its constitutional implications. As in Ryan , on the record before us, it is impossible for us to do anything but speculate as to whether the court properly considered how defendant's disability affected the gravity of the offense, which is the first factor under Rodriguez/Buck . For that reason, we remand the case for resentencing.

Finally, we note that the state raises State v. Conrad , 280 Or. App. 325, 335, 381 P.3d 880 (2016), rev. den. , 360 Or. 851, 389 P.3d 1141 (2017), for the proposition that a trial court is not required to make explicit findings on the record when the record does not indicate that the court misapprehended the relevant factors that it could consider in assessing whether a mandatory minimum sentence is constitutionally disproportionate. That argument is unavailing. The holding in Conrad was based on the general rule that we presume that a trial court resolves factual disputes consistent with its ultimate disposition in the absence of express findings. Ball , 250 Or. at 487, 443 P.2d 621. However, as explained above, that general presumption does not apply when a trial court does not address a defendant's intellectual disability in comparing the gravity of the defendant's offense with the severity of his or her sentence. Ryan , 361 Or. at 624-25, 396 P.3d 867. In other words, our typical presumptions under Ball do not apply where, as here, we would have to speculate to conclude that the court properly considered the effect of a defendant's disability in making a proportionality determination. Like the court did in Ryan , we conclude that the trial court erred in failing to adequately consider, on the record, defendant's intellectual disability with regard to the comparison of the gravity of defendant's offense and the severity of the 300-month imprisonment sentence. We remand so that the court will have the opportunity to do so.

Because we remand for resentencing under defendant's arguments under the Oregon Constitution, we do not reach his Eighth Amendment argument under the federal constitution. The case is remanded for resentencing in a manner consistent with this opinion.

Remanded for resentencing; otherwise affirmed.

      Additionally, after the initial briefing was complete and following oral argument, defendant filed a supplemental brief that included a supplemental assignment of error that assigned error to the trial court's instruction to the jury that it could return a nonunanimous verdict. Defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution require unanimous jury verdicts. We reject that argument on the merits without further discussion.

      Neither the psychological evaluation reviewed by Colistro, Chedester's police report, nor the psychological and special education reports furnished to Chedester by defendant's grandmother are in the record, but both the presentencing investigation report and Colistro's report describe the contents of these documents as they were described in the Washington County police report.

      Defendant concedes in his brief that the presentence investigation report contains evidence that defendant understood, at least abstractly, that engaging in sexual contact with a minor is wrong.

      Defendant does not challenge the constitutionality of his 75-month sentence on Count 2 for first-degree sexual abuse.

      The trial court in Ryan stated:
      "This Court, based upon the record before me, would find that [defendant] is of mild to moderate cognitive-or possesses a mild to moderate cognitive disability. That based upon the exhibits presented and the file materials that, [defendant], there is a danger to our community [in] placing you out in the community. I have, again, based upon this record, a great deal of respect for [the proposed treatment] program, and think that would be appropriate but for the Measure 11 sentence-or the Measure 11 guidelines that have been laid out by the Legislature as well as by the courts, particularly in Rodriguez/Buck . When considering the Oregon Constitution, specifically Article [I], [s]ection 16 of the Oregon Constitution [,] as well as the Eighth Amendment of the U.S. Constitution as applied to you, [defendant], I do not find, under this record, that your sentence under Measure 11 shocks the conscience of this Court with regard to the underlying factual admissions that have been made. It is a challenge for any court [when] the Legislature decides to remove the Court's ability to fashion an appropriate remedy for somebody who possesses your background and disability, but I do believe that your-the analysis of Rodriguez/Buck that-and Measure 11, that I would have to find shocking of the conscience before I move into that, though I would hope that that would change, and I may be applying it inaccurately, that seems to be the out-the paradigm that has been laid out by the courts in light of Measure 11."
      361 Or. at 609-10 n. 2, 396 P.3d 867.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jeremiah Scott PARTAIN, Defendant-Appellant.
    A166136
    Court of Appeals of Oregon.
    Submitted March 6, 2019. July 10, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Lauren P. Robertson, Assistant Attorney General, filed the briefs for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
   PER CURIAM

Affirmed. State v. Saunders , 298 Or. App. 291, 447 P.3d 60 (2019).