text:
    In the MATTER OF the DOMESTIC PARTNERSHIP OF Ronald Dean JOLING, Jr., Petitioner-Appellant, and Jackie Diane Joling, Respondent-Respondent.
    A165778
    Court of Appeals of Oregon.
    Argued and submitted November 16, 2018. May 15, 2019
    George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.
    Margaret H. Leek Leiberan, Portland, argued the cause for respondent. Also on the brief was Jensen & Leiberan.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Petitioner appeals from a judgment that dissolved petitioner's domestic relationship with respondent. Among other things, the judgment divided the parties' property and awarded their primary asset, their previously shared home, entirely to respondent (less some set offs that are not in dispute before us). Because the evidence does not support a reasonable inference that the parties intended that respondent would receive the entirety of the home in a property division, we conclude that the trial court abused its discretion and reverse and remand for the trial court to reconsider the division of the parties' real property.

We first address our standard of review. Because an action to dissolve a domestic partnership is an equitable proceeding, Branam and Beaver , 225 Or. App. 630, 634, 202 P.3d 886 (2009), we have discretion to review the facts and record de novo . ORS 19.415(3)(b). However, petitioner has not sought de novo review, and this is not the type of exceptional case where we would exercise our discretion to engage in such a review. Staveland and Fisher , 295 Or. App. 210, 212, 433 P.3d 749 (2018), rev. allowed , 364 Or. 723 (2019) ; see also ORAP 5.40(8)(c) (stating that we will exercise our discretion to review de novo "only in exceptional cases"). "Consequently, we are bound by the trial court's express and implicit factual findings if they are supported by any evidence in the record." Staveland , 295 Or. App. at 212, 433 P.3d 749 (citations and internal quotation marks omitted). We review a trial court's division of property in the dissolution of a nonmarital domestic relationship for an abuse of discretion. Id . at 218, 433 P.3d 749.

Petitioner and respondent participated in a religious wedding ceremony in California in 1993. The parties, however, decided not to obtain a California wedding license. Petitioner's father, a self-ordained minister who performed the marriage ceremony, told respondent that a marriage license was unnecessary because "marriage is between God and the couple" and incorrectly informed her that she and petitioner would be legally married in any event because Oregon had common-law marriage.

During the ceremony, the couple exchanged vows and signed a covenant. Petitioner vowed that he would "love, honor, and care for" respondent. In return, respondent vowed that she would "love, honor, and obey" petitioner. The parties also exchanged traditional vows that they would "take" each other as "wedded husband" and "wedded wife," "to have and hold from this day forward. For better, for worse; for richer, for poorer; in sickness and in health; to love and to cherish 'til death do us part." The written marriage covenant stated that "Groom [petitioner], and Bride [respondent] before God and witnesses were united in Holy Matrimony." The covenant was signed by petitioner, respondent, the minister, and 10 witnesses.

For 21 years following that ceremony, petitioner and respondent presented themselves to their community as a married couple. They cohabitated, had three children (only one of whom was still a minor at the time of dissolution), and listed their tax status as married when preparing their tax forms, which were sometimes filed jointly and sometimes separately.

For the duration of their partnership, the parties divided duties of work and family life. Petitioner worked outside the home as a general contractor. Respondent maintained the parties' home, raised the children, and, for a time, homeschooled them. Respondent testified that her work at home included cooking, cleaning, laundry, shopping, gardening, and helping to build the family home. She did "everything" when it came to household chores. In doing so, she sacrificed opportunities for further education or to obtain other job skills. Respondent also held various jobs outside the home to supplement the family income, including working at an auto parts store, as a secretary and data entry clerk, and as a teacher's assistant. The parties maintained that general arrangement for 21 years.

With regard to the parties' family home, petitioner had saved approximately $50,000 prior to the marriage ceremony, and, of that amount, he used $24,000 as a down payment for the property on which they would later build the home. Petitioner also invested approximately $25,000 for supplies to build a barn on the property. Petitioner built the family home on the property, and respondent worked along-side petitioner in that effort. The couple also titled the deed to their home as "a married couple." Respondent presented expert testimony that the home was appraised at some point before trial at $488,900.

The parties permanently separated in October 2014, when petitioner left the family home. After he left, petitioner continued to pay for respondent's and the children's living expenses. Petitioner and respondent decided to divorce in early 2015. At some point after that decision, the parties learned from their attorneys that, because they did not have a state marriage license, they were not legally married. Petitioner testified that, after he learned that he and respondent were not legally married, he believed he no longer had an obligation to support her. In the fall of 2015, petitioner significantly reduced the amount of support that he paid for respondent's household and personal expenses but continued to pay child support.

Petitioner petitioned for custody of the parties' minor child and dissolution of their domestic partnership. Respondent counterclaimed for breach of a claimed contract of marriage. Respondent's counterclaim is based, in part, on the premise that petitioner breached his vows to support her when he stopped fully supporting her in the fall of 2015.

Based on these facts, the trial court concluded that petitioner had breached an express and implied contract of marriage and that, as damages for that breach, respondent should be awarded the entirety of their family home (less a set off of $24,000 for petitioner's initial down payment that came from his premarriage-ceremony funds and other smaller set offs not at issue). It appears that the court awarded the entirety of the home to respondent because, among other reasons, it was the parties' largest asset and the court questioned whether it had authority to award spousal support in a case involving a domestic partnership that did not result in a legal marriage. The court reasoned as follows in a letter opinion:

"In summary, this is a marriage just like any other, except for the marriage license. *** [U]nder normal circumstances, this would be a case where [respondent] would certainly be entitled to significant spousal support.
"Assuming that the Court of Appeals has ruled that spousal support is not allowed, in a domestic partnership case (and not in a partition case), and that is an unbending principle even though the facts in Brazell v. Meyer , [42 Or. App. 179, 600 P.2d 460 (1979) (rejecting spousal support in a domestic partnership) ], are different than the facts in this case; then the respondent has advanced several arguments that she should, nevertheless, be entitled to spousal support and/or damages."

The court also concluded that it was more appropriate to award respondent the house because respondent had testified that, "if she were awarded typical spousal support in periodic payments, she has been informed by petitioner that he would not pay those; and because he is self-employed, it would be difficult for her to collect subsequent payments." Thus, the court awarded the family home to respondent apparently as a substitute for an award of spousal support. The court specifically ruled, however, that respondent was not entitled to an award of on-going spousal support.

Instead, the trial court ruled in favor of respondent on her breach of contract counterclaim, finding that petitioner breached a contract that was formed by the parties' vows, the signed covenant, and subsequent conduct. The contract, according to the trial court, had elements of an express contract, an implied contract, and a quasi-contract that was "established by the parties' conduct through the years." The trial court concluded that the vows spoken at the ceremony created the terms of the contract:

"[A] party who has contributed services to a relationship may attempt to recover for the value of the services under one of three theories-express contract, implied-in-fact contract, or a quasi-contract.
"* * * * *
"The express contract, is the 'marriage covenant' document, that the parties and witnesses signed on the date of their marriage and the oral wedding vows, including petitioner's pledge, at the marriage ceremony to 'love, honor, and care for' the respondent. (emphasis added). Finally, the conduct of the parties, as mentioned above, is in every way consistent with a true married couple."

The trial court relied on McHenry v. Smith , 45 Or. App. 813, 609 P.2d 855 (1980), to determine that there was a contract created between the parties. In McHenry , we held that a contract between an unmarried couple that "contemplated all the burdens and amenities of married life" is enforceable. Id . at 816, 609 P.2d 855 (internal quotation marks omitted). The court further concluded that petitioner breached the contract when petitioner stopped making full payments for household bills to respondent and when he repudiated the contract by asserting he was never legally married to respondent, because he "understood [that] he had an obligation to care for the respondent, in good times and in bad times, according to his wedding vows." The court awarded to respondent, as damages, "the real estate free and clear of any interest by petitioner except for the setoffs * * *."

On appeal, petitioner assigns error to the trial court's ultimate division of the parties' real property. Petitioner contends that the court incorrectly made each of the following legal conclusions in reaching its decision: (1) that the parties formed an enforceable marriage contract; (2) that petitioner breached the contract when he "significantly reduced the amount of support he paid to respondent" and "assert[ed] that he was never legally married to respondent"; and (3) that respondent was entitled to damages for the breach in the form of the parties' family home "free and clear of any interest by petitioner." Petitioner contends that, applying the principles in Beal and Beal , 282 Or. 115, 577 P.2d 507 (1978), the parties' home should be divided equally between them. Respondent concedes that the principles in Beal apply to this case but contends that those principles support awarding the entirety of the value of the home to respondent (less the set off of $24,000 to petitioner that is not disputed). As we explain below, we accept the parties' concession that Beal controls the outcome of this case and conclude that, even accepting the trial court's explicit and implicit findings of fact, the court abused its discretion in concluding that those facts support an award of the entirety of the parties' home to respondent.

We start our analysis with the law that applies when partners, like the parties here, have not entered into a legal marriage, but have entered into a domestic partnership. In the mid-1970s, the Oregon Supreme Court recognized the need to address the absence of law protecting unmarried partners and their assets. In Latham and Latham , 274 Or. 421, 427, 547 P.2d 144 (1976), the Oregon Supreme Court held that an express agreement between unmarried partners to share equally in the real and personal property accumulated during the domestic partnership was not void as against public policy. It abrogated prior law that refused to recognize such contracts. Id .

The Supreme Court again considered how to divide property between unmarried partners in Beal . In that case, the parties had jointly entered into a land-sale contract to acquire a home together during their relationship and had lived in the house together for about two years. 282 Or. at 117, 123, 577 P.2d 507. Unlike in Latham , however, there was no express agreement between the parties that contemplated how to divide their assets if they separated. The trial court decided to award each party an equal undivided interest in the property. Id .

On review, the Supreme Court affirmed the equal division of the property during the time that the parties jointly lived there and applied a set off to that division to account for one partner's larger down payment on the property. Id . To reach that decision, the court looked to traditional contract principles to determine the parties' intent regarding the distribution of their assets should they separate:

"We believe a division of property accumulated during a period of cohabitation must be begun by inquiring into the intent of the parties, and if an intent can be found, it should control that property distribution. While this is obviously true when the parties have executed a written agreement, it is just as true if there is no written agreement. *** Thus, absent an express agreement, courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon. ***
"More often than not, such an inquiry will produce convincing evidence of an intended division of property, but we recognize that occasionally the record will leave doubt as to the intent of the parties. In such cases, inferences can be drawn from factual settings in which the parties lived. Cohabitation itself can be relevant evidence of an agreement to share incomes during continued cohabitation. Additionally, joint acts of a financial nature can give rise to an inference that the parties intended to share equally. Such acts might include a joint checking account, a joint savings account, or joint purchases.
"* * * * *
"In summary, we hold that courts, when dealing with the property disputes of [partners] who have been living together in a non-marital domestic relationship, should distribute the property based upon the express or implied intent of those parties."

Id . at 122-23, 577 P.2d 507 (citations omitted). To determine the parties' intent in Beal , the court considered their conduct during their relationship, including their pooling of their resources for their common benefit; their financial arrangements that indicated a sharing of resources, which included a joint saving account; and their combined living arrangements. Id . We also consider as relevant to the parties' implicit intent, "among other things, whether the parties held themselves out to the community as married, how title to the property was held, and the parties' respective financial and nonfinancial contributions to their assets." Staveland , 295 Or. App. at 217-18, 433 P.3d 749.

Over 40 years later, Beal and its progeny remain the controlling law for the distribution of assets acquired during a domestic partnership. We recently applied Beal in Staveland , a case, like this one, involving the division of assets, including real property, between an unmarried couple who had dissolved their domestic relationship, which they had treated much like a marriage. We noted that Beal was decided when we regularly applied de novo review to equitable appeals, which is no longer the case, and, as a result, it was not clear what legal standard of review we applied to the facts. Staveland , 295 Or. App. at 218, 433 P.3d 749 ; ORS 19.415(3)(b) (providing that we may, in our sole discretion, choose to exercise de novo review in appeals of equitable actions). We concluded that where, as here, we do not exercise our discretion to conduct a de novo review, we accept the trial court's explicit and implicit findings of fact that are supported by the evidence, and we consider whether the trial court abused its discretion. Staveland , 295 Or. App. at 212, 218, 433 P.3d 749. As Staveland put it, we consider whether the trial court could "reasonably infer" from the facts that the parties intended to divide their assets. Id . at 220, 433 P.3d 749. The trial court "may exercise its equitable powers to reach a result that is fair under all of the circumstances." Id . at 218, 433 P.3d 749 (citations and internal quotation marks omitted).

As noted, the parties before us concede that Beal controls the outcome of this appeal. That concession is sound because the parties, although they initially mistakenly believed that they were legally married, were in a domestic partnership. We therefore turn to an application of the principles in Beal , applying the standard of review set forth in Staveland .

As the trial court correctly recognized, this case has aspects of an express agreement-to the extent that the vows express an agreement-and aspects of an implied agreement, which is reflected in the parties' conduct during their domestic relationship. Turning to the vows and marriage covenant, the trial court placed significant weight on petitioner's vow to "love, honor and care for" respondent, and particularly on his vow to care for her. The trial court noted that petitioner's ongoing support payments to respondent immediately after the parties' separation further supports the notion that petitioner's vow to care for respondent included providing for her financial care. The trial court concluded that petitioner had breached that vow when he unilaterally reduced the support payments to respondent at some point after discovering that the parties were not legally married.

Turning to the parties' conduct that may reflect their intent on their sharing of income and assets, the trial court found, and there is evidence to support the finding, that the parties had treated their relationship as a marriage and agreed on a particular division of the family responsibilities. As set out above, petitioner and respondent agreed that petitioner would work outside the home, while respondent took care of the home and children and, on occasion, took work outside the home to supplement the family income. As noted, the parties filed taxes as a married couple, sometimes jointly and, at other times, separately.

With regard to the family house, petitioner invested funds that he had saved prior to the parties' marriage ceremony as a down payment on the property and for improving the property. However, both parties worked to build the house on the property, lived in the house and raised a family there together, and they titled the deed to the property in both of their names as a "married couple."

Based on those facts, it was not reasonable for the trial court to infer that the parties either explicitly or implicitly intended for respondent to receive the entirety of the house that they had jointly built, titled, and shared as a family during their long partnership. Under Beal , a court must look to the express and implied conduct of the parties during the domestic partnership to determine the parties' intent as to how joint property would be distributed upon their separation. 282 Or. at 122-23, 577 P.2d 507. Here, the parties' conduct does not support a reasonable inference that the parties intended that respondent would be entitled to the family home "free and clear" of any interest of petitioner. Nor does petitioner's conduct of voluntarily providing financial support to respondent after the parties permanently separated indicate an intention formed by the parties during their partnership that respondent would be entitled to the entirety of their largest asset. From those facts, it is not reasonable to infer that the parties intended that respondent was to retain the entire value of the parties' joint home should their relationship end.

We have previously recognized that Beal does not require a "mechanistic application" that ignores the nature of the parties' relationship and their contributions and sacrifices in a long-term nonmarital relationship. Shuraleff v. Donnelly , 108 Or. App. 707, 712-15, 817 P.2d 764 (1991) ; see also Wilbur v. DeLapp , 119 Or. App. 348, 352, 850 P.2d 1151 (1993) (concluding, on de novo review and application of principles in Beal , that the plaintiff should be awarded half of the value of the defendant's PERS account and recognizing that the plaintiff had not accumulated retirement funds of her own due to her primary role as homemaker and her separate contribution to the defendant's career and the couple's standard of living). We do not foreclose the possibility that, on this record, a trial court might reach a division of the assets that is not equal, and it may recognize substantial nonmonetary contributions to the acquisition and growth of the value of the parties' assets. However, we conclude that the trial court abused its discretion when it effectively gave petitioner no interest in the parties' largest asset (even in light of the division of other smaller assets that are not currently in dispute) because the court could not reasonably reach that conclusion based on the facts in the record.

In addition, petitioner's vows do not reflect an express promise by petitioner to provide respondent with their home should their relationship terminate. This case is distinguishable from McHenry , in which we affirmed the trial court's award of damages for a breach of a cohabitation agreement. In McHenry , the unmarried partners had an express agreement regulating their economic affairs that one party breached. The plaintiff alleged that she and the defendant had an express agreement wherein the plaintiff

"promised to 'work and support defendant and to render her services as companion, cook, homemaker, gardener, and housekeeper to him.' In return, [the defendant] 'agreed to write a German textbook or teaching manual and upon reestablishing his professional career, to work and support [the] plaintiff and to render his services as companion, advisor, caretaker and counselor to her.' "

45 Or. App. at 815, 609 P.2d 855. During their relationship, the parties acquired a property that was deeded only in the defendant's name. Id . at 818, 609 P.2d 855. The plaintiff found employment and worked throughout most of her relationship with the defendant while he worked at a few temporary jobs, but he also focused on completing his German textbook. Id . Once the defendant completed his textbook, he reneged on the plan to provide a deed to the plaintiff for half of the real estate and refused to support her financially going forward. Id . The trial court concluded that the plaintiff's contract claim could proceed to a jury, and, on appeal, we affirmed that ruling. Id . at 815-16, 818-19, 818 n. 2, 609 P.2d 855.

Here, unlike in McHenry , respondent did not prove that the parties had an enforceable agreement regarding the distribution of their income and jointly acquired property. As set out above, the facts, as found by the trial court, do not support a reasonable inference that the parties' intended that the house would be distributed solely to respondent.

Finally, we briefly address the issue of "spousal support." See ORS 107.105(1)(d) (providing that a court may provide "spousal support" in a judgment for "marital annulment, dissolution or separation"). In Brazell , a case involving a domestic partnership, we stated in a footnote that the trial court had correctly determined that it lacked authority to grant spousal support. 42 Or. App. at 182 n. 1, 600 P.2d 460. The text of the opinion concerned how to divide the real and personal property of an unmarried couple. Outside of the passing reference in that footnote, the opinion does not indicate that the issue of spousal support was before us on appeal, and we resolved only the disputed issues concerning the proper division of the parties' property, namely their home and automobile. Cf. Stufflebean v. Brown , 147 Or. App. 347, 349, 935 P.2d 482 (1997) (explaining Brazell and stating that the attorney fee provision in ORS 107.105(5) does not apply to an action for equitable division of property of an unmarried couple because it only applies to actions for annulment or dissolution of a marriage or a separation in a marriage); Wilbur , 119 Or. App. at 351, 850 P.2d 1151 (noting that, because Oregon does not recognize common-law marriage, property of an unmarried couple was not subject to statutes governing dissolution of marital property). Here, we are also not called upon to address a trial court's authority to award spousal support at the termination of a domestic partnership, as that issue is not before us. As explained above, the trial court here did not award spousal support.

Ultimately, the trial court erred in failing to properly apply Beal , as further clarified in our case law, to the facts of this case as found by the trial court. While we leave for the trial court to determine in the first instance whether Beal requires an equal division in this case based on the parties' intent, we conclude that, applying the principles in Beal , the trial court abused its discretion in giving respondent nearly 100 percent of the value of the parties' home. We remand to the trial court to reconsider its division of the family home consistent with this opinion and according to the principles stated in Beal .

Portion of general judgment relating to real property division reversed and remanded; otherwise affirmed.

      There appear to have been several deeds to the property during the parties' relationship. An early deed, prior to the wedding ceremony, refers to the parties' title as joint tenants with right of survivorship. A later deed refers to the parties' title as "tenants in common," but refers to them as "a married couple."

      The trial court also awarded child support to respondent to be paid by petitioner. That award is not at issue in this appeal.


source: Caselaw Access Project

author: DEHOOG, J.

license: Public Domain

text:
    Nicholas Judson RINNE, Petitioner, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent.
    A164557
    Court of Appeals of Oregon.
    Submitted November 29, 2018. May 15, 2019
    Harris S. Matarazzo filed the brief for petitioner.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   DEHOOG, J.

Petitioner appeals, requesting that we reverse and remand an order of the Psychiatric Security Review Board (PSRB) denying his request for discharge from PSRB jurisdiction and continuing his commitment to the Oregon State Hospital (OSH). Petitioner argues that neither PSRB's factual finding, that he presents a substantial danger to others as a result of a qualifying mental disease or defect, nor its resulting legal conclusion, that he remains subject to PSRB jurisdiction, is supported by substantial evidence. See ORS 161.351 (requiring discharge if person under PSRB jurisdiction is "no longer affected by a qualifying mental disorder or, if so affected, no longer presents a substantial danger to others that requires regular medical care, medication, supervision or treatment"). Having reviewed PSRB's order and the underlying record, we agree with petitioner. Specifically, we conclude that substantial evidence does not support PSRB's finding, in support of its order, that petitioner's anxiety disorder renders him a substantial danger to others. As a result, we reverse and remand PSRB's order asserting continuing jurisdiction over petitioner.

With the exception of PSRB's ultimate finding (that petitioner suffers from a qualifying mental disease or defect that renders him a substantial danger to others), the relevant facts are largely procedural and undisputed. Petitioner has been a patient at OSH since 1999, when a trial court entered a judgment finding petitioner guilty except for insanity and placing him under PSRB jurisdiction for a period of not more than 60 years. See ORS 161.327(1) (authorizing commitment to state hospital of a person found guilty except for insanity of a felony, if the person "is affected by a qualifying mental disorder and presents a substantial danger to others"). Since then, petitioner has had multiple hearings before PSRB. Those include one held in 2015 after OSH requested that PSRB discharge petitioner because he no longer carried a "jurisdictional diagnosis," i.e. , a qualifying mental health diagnosis warranting continued PSRB jurisdiction. See ORS 161.341(1) (2011), amended by Or. Laws 2017, ch. 634, § 11, and Or. Laws 2017, ch. 442, § 4; OAR 859-060-0040. OSH recognized that petitioner remained at risk of sexually reoffending due to a nonqualifying diagnosis of Pedophilic Disorder. OSH also acknowledged that petitioner exhibited symptoms of anxiety. In OSH's view, however, petitioner's anxiety symptoms were associated with his pedophilia and another nonqualifying personality disorder. In any event, OSH maintained, those symptoms were not themselves causally related to petitioner's dangerousness. Further, by that time, petitioner's only other potentially jurisdictional diagnosis of Autism Spectrum Disorder could no longer be supported. Thus, OSH asserted, PSRB no longer had any basis on which to continue exercising jurisdiction over petitioner. At the conclusion of that proceeding, however, PSRB concluded that, because petitioner was "affected by a mental disease or defect which, when active, render[ed] him a substantial danger to others," he was properly under PSRB jurisdiction; accordingly, PSRB denied the requested discharge and continued petitioner's commitment to OSH. Petitioner appealed that decision.

In 2016, while that appeal of PSRB's 2015 decision was pending before us, petitioner initiated another PSRB hearing on his own behalf. OSH again supported petitioner's discharge from PSRB jurisdiction. By then, however, OSH no longer held the view that petitioner did not have a potentially jurisdictional diagnosis; rather, acknowledging that petitioner had current diagnoses for Illness Anxiety Disorder and Other Specified Anxiety Disorder, OSH took the position that neither of those otherwise qualifying diagnoses was the cause of petitioner's dangerousness. As before, OSH expressed its view that the substantial risk that petitioner would engage in pedophilic behaviors in the future was solely due to his pedophilia. Accordingly, OSH again maintained that PSRB lacked jurisdiction over petitioner. The present appeal arises from PSRB's February 2017 hearing, at which it again rejected that argument.

To provide context for our discussion of the evidence presented at that hearing, we pause to give an overview of the procedural and substantive laws governing PSRB's consideration of petitioner's request. At the time of the hearing, petitioner's request was governed by ORS 161.351 (2011), amended by Or. Laws 2017, ch. 634, § 13, and Or. Laws 2017, ch. 442, § 5. Under that provision, the standards for discharge were as follows:

"(1) Any person placed under the jurisdiction of the Psychiatric Security Review Board or the Oregon Health Authority under ORS 161.315 to 161.351 shall be discharged at such time as the agency having jurisdiction over the person, upon a hearing, finds by a preponderance of the evidence that the person is no longer affected by mental disease or defect or, if so affected, no longer presents a substantial danger to others that requires regular medical care, medication, supervision or treatment.
"(2) For purposes of ORS 161.315 to 161.351, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect. A person whose mental disease or defect may, with reasonable medical probability, occasionally become active and when it becomes active will render the person a danger to others may not be discharged. The person shall continue under supervision and treatment necessary to protect the person and others.
"(3) In determining whether a person should be committed to a state hospital or secure intensive community inpatient facility, conditionally released or discharged, the board and the authority shall have as their primary concern the protection of society."

As we observed in Beiswenger v. PSRB , 192 Or. App. 38, 41, 84 P.3d 180, rev. dismissed as improvidently allowed , 337 Or. 669, 104 P.3d 601 (2004), the legislature did not define "mental disease or defect" other than to say what those terms do not mean, specifically, that they "do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder."

ORS 161.295(2) (1983), amended by Or. Laws 2017, ch. 634, § 3. Likewise, the legislature had not defined "personality disorder." See Beiswenger , 192 Or. App. at 45, 84 P.3d 180. Based, however, on our review of the statutory text and context, as well as the available legislative history and applicable canons of construction, we concluded in Beiswenger that, as used in ORS 161.295(2) (1983), "personality disorder" included sexual conduct disorders, alcohol dependency, and drug dependency. Id . at 54, 84 P.3d 180. As a result, those disorders did not constitute "mental disease[s] or defect[s]" within the meaning of ORS 161.295(2) (1983). Id . And, in petitioner's case, there is no dispute that pedophilia is a sexual conduct disorder and therefore not a qualifying mental disease or defect for purposes of PSRB jurisdiction. Thus, under ORS 161.351(1) (2011), PSRB was required to discharge petitioner from its jurisdiction unless it found, by a preponderance of the evidence, that petitioner was affected by a mental health condition other than pedophilia or another "personality disorder" and that he "present[ed] a substantial danger to others that require[d] regular medical care, medication, supervision or treatment." See also OAR 859-050-0055.

We return to the facts. At the 2017 hearing, PSRB considered petitioner's voluminous OSH file, which documented his various (and varying) mental health diagnoses, OSH's efforts to provide treatment in connection with those diagnoses, and petitioner's progress in that regard. Petitioner's records show that, well before he was first hospitalized in 1999, petitioner had been diagnosed with autism, a qualifying mental disease or defect. It is not readily apparent, however, whether that diagnosis played any role in PSRB's initial assertion of jurisdiction, because the judgment finding petitioner guilty except for insanity does not reflect a specific diagnosis. See ORS 161.325 (requiring qualifying mental disorder to be identified on the record but not explicitly requiring its listing in the judgment). In any event, by the time of petitioner's PSRB hearing in 2015, his treatment providers all agreed that an autism diagnosis could no longer be supported. And, although petitioner appears also to have been diagnosed shortly before his initial commitment with schizophrenia, another qualifying mental disease or defect, the record does not reflect an ongoing diagnosis for that or any related disorder, nor does PSRB appear to have relied on such a diagnosis in either 2015 or 2017. Notably, since at least 2006, petitioner has openly acknowledged having malingered at the time of his retrial as to certain "psychotic" symptoms in order to be hospitalized rather than incarcerated.

PSRB also heard testimony, including that of Dr. Roff, who at the time of the hearing had been petitioner's treating psychiatrist for approximately two years. Roff, who, as part of her evaluation had reviewed the thousands of pages of petitioner's OSH records, testified that she had diagnosed petitioner with the following disorders, all of which are recognized in the Diagnostic and Statistical Manual of Mental Disorders-Fifth Edition (DSM-5): Illness Anxiety Disorder (previously known as Hypochondriasis ); Other Specified Anxiety Disorder; Pedophilic Disorder (identified by Roff as petitioner's primary diagnosis); Antisocial Personality Disorder ; Obsessive-Compulsive Personality Disorder ; and Alcohol Use Disorder in full remission in a controlled environment. The parties evidently agree that, of those six diagnoses, only two qualify as "mental disease[s] or defect[s]" for purposes of PSRB jurisdiction: Illness Anxiety Disorder and Other Specified Anxiety Disorder. See ORS 161.295(2) (1983) ("mental disease or defect" does not include personality disorders); Beiswenger , 192 Or. App. at 54, 84 P.3d 180 (recognizing paraphilia to be a sexual conduct disorder and therefore a nonqualifying "personality disorder" under ORS 161.295(2) (1983) ). Consistent with OSH's view, however, Roff testified that petitioner's dangerousness was due solely to his nonqualifying diagnosis of Pedophilic Disorder.

Following the 2017 hearing, PSRB made the following findings relevant to this appeal, accompanied by references to exhibits in the record that PSRB relied upon for support:

"2. [Petitioner] is affected by a mental disease or defect * * * [and] continues to suffer from an anxiety disorder, to wit, Illness Anxiety Disorder and Other Specified Anxiety Disorder, for which he currently receives medication. ***
"The Board carefully considered the concluding opinion of Dr. Roff that [petitioner's] dangerousness is solely caused by his non-qualifying mental conditions, however, the Board is not convinced by a preponderance of the evidence of her conclusion. Specifically, the Board notes Dr. Roff's testimony and progress notes allow for the inference that [petitioner's] anxiety disorder makes him less likely to seek out psychiatric treatment, including sex offender treatment, which makes him a substantial danger to others.
"3. [Petitioner], without adequate supervision and treatment, would continue to present a substantial danger to others ***. ***
"The Board additionally notes that when asked directly about [petitioner's] risk of dangerousness now versus at the time of his last hearing, Dr. Roff testified that [petitioner's] risk of dangerousness to others has increased, in her opinion due to learning more about [petitioner] and his propensities to engage in high-risk behavior.
"4. The State sustained its burden of proving by a preponderance of the evidence that [petitioner] continues to be affected by a mental disease or defect and continues to be a substantial danger to others and that he should not be discharged from the jurisdiction of the Board.
"5. [Petitioner] could not be adequately controlled and treated in the community if he were conditionally released at this time."

Based on those findings, PSRB concluded as a matter of law that:

"1. [Petitioner], being affected by a mental disease or defect which, when active, renders him a substantial danger to others, is under the jurisdiction of the Psychiatric Security Review Board.
"2. [Petitioner] is not a proper subject for conditional release because he could not be adequately controlled and treated in the community and therefore it would not be in the best interest of justice and the protection of society to release him at this time."

Accordingly, PSRB ordered that petitioner's commitment to a state hospital be continued under ORS 161.346(1)(c) and ORS 161.351(2). Petitioner appeals from that order.

We review PSRB's order for substantial evidence. Specifically, ORS 183.482(8)(c) provides that a reviewing court

"shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."

We review both PSRB's factual findings and its legal conclusions derived from those findings. Knotts v. PSRB , 250 Or. App. 448, 454, 280 P.3d 1030 (2012). We review any disputed findings to determine whether they are supported by the evidentiary record and, specifically, whether a reasonable person, viewing the record as a whole, could make those findings. Id. at 454-55, 280 P.3d 1030. We do not substitute our own findings for those made by PSRB. Rather, we determine whether PSRB could reasonably make the findings that it made. Id. at 455, 280 P.3d 1030. In reviewing whether substantial evidence supports PSRB's findings, we " 'evaluate the substantiality of supporting evidence by considering all the evidence in the record.' " Garcia v. SAIF , 187 Or. App. 51, 57, 66 P.3d 522 (2003) (quoting Younger v. City of Portland , 305 Or. 346, 356, 752 P.2d 262 (1988) (emphasis in Garcia )).

In turn, we review PSRB's legal conclusions to determine whether they logically follow from the facts PSRB found. Knotts , 250 Or. App. at 455, 280 P.3d 1030. In doing so, we consider only the reasoning stated in the challenged order. Id. ; see also Castro v. Board of Parole , 232 Or. App. 75, 85-86, 220 P.3d 772 (2009) ("Our duty is to evaluate the board's logic, not to supply it."). PSRB must, therefore, explain its conclusions in sufficient detail to allow us to review its reasoning. If PSRB's reasoning is not apparent from the order or if that reasoning is faulty, the order is not supported by substantial reason. Knotts , 250 Or. App. at 455, 280 P.3d 1030.

On appeal, petitioner does not appear to dispute either that he has a qualifying mental disease or defect or that he is a substantial danger to others. Rather, he argues that substantial evidence does not support PSRB's finding that he is dangerous because of a qualifying mental disease or defect. Petitioner's dangerousness, he contends, results from his Pedophilic Disorder, which, as noted, is not a mental disease or defect for purposes of PSRB jurisdiction. Thus, according to petitioner, PSRB erred in finding that he presents a substantial danger to others as a result of a qualifying mental disease or defect.

In response, PSRB argues that the record supports the finding that petitioner's Other Specified Anxiety Disorder makes him "more dangerous than he otherwise would be," thereby rendering him a substantial danger to others and warranting continued PSRB jurisdiction. Specifically, PSRB contends, petitioner's Other Specified Anxiety Disorder makes it more likely that, if petitioner were to be discharged from PSRB jurisdiction, he would forgo necessary sex offender treatment, seek out settings in which it would be difficult to detect his predatory behavior, and carefully plan out and execute his pedophilic activities so as to avoid apprehension. Thus, even though PSRB does not dispute that petitioner's Pedophilic Disorder is the primary cause of his dangerousness, PSRB reasons that the Other Specified Anxiety Disorder makes it more likely than it would be in the absence of that disorder that petitioner will reoffend; that is, because the danger brought on by petitioner's pedophilia will, due to petitioner's anxiety, not be lessened , his Other Specified Anxiety Disorder makes him more dangerous than he would be if he did not have that particular mental disease or defect. That, PSRB argues, is all that ORS 161.351(1) (2011) requires to warrant continued jurisdiction.

As the foregoing arguments demonstrate, the focus of both parties is whether there is a causal connection-or "nexus"-between petitioner's qualifying mental disease or defect and the dangerousness he poses. In exploring that issue, we note that, although neither the plain text of ORS 161.351(1) (2011) nor any case law of which we are aware establishes a nexus requirement, neither party advances an alternate reading of the statute. Moreover, even though some of the language in PSRB's order can be viewed as suggesting that only a temporal-as opposed to causal-relationship is required, the board's ultimate conclusion is stated in terms of ORS 161.351(2) (2011), the plain text of which does suggest a causality requirement by considering whether a person's mental disorder "will render the person a danger to others." (Emphasis added.) And, because that is the ruling that petitioner challenges, we, like the parties, proceed to consider whether substantial evidence and reason support PSRB's finding of a causal relationship between any qualifying mental disease or defect that petitioner has and the substantial danger to others that he presents.

As noted, PSRB ultimately concluded that petitioner, "being affected by a mental disease or defect which, when active, renders him a substantial danger to others, is under the jurisdiction of the Psychiatric Security Review Board." (Emphasis added.) PSRB explained its underlying finding of a causal relationship between petitioner's qualifying mental disease or defect and his dangerousness to others as follows:

"[Petitioner] is affected by a mental disease or defect *** [and] continues to suffer from an anxiety disorder, to wit, Illness Anxiety Disorder and Other Specified Anxiety Disorder, for which he currently receives medication. ***
"The Board carefully considered the concluding opinion of Dr. Roff that [petitioner's] dangerousness is solely caused by his non-qualifying mental conditions, however, the Board is not convinced by a preponderance of the evidence of her conclusion. Specifically, the Board notes Dr. Roff's testimony and progress notes allow for the inference that [petitioner's] anxiety disorder makes him less likely to seek out psychiatric treatment, including sex offender treatment, which makes him a substantial danger to others."

(Emphasis added.)

Having reviewed the record, we agree with petitioner that PSRB's finding of that nexus is not supported by substantial evidence, because the record, viewed as a whole, would not permit a reasonable person to make that finding. See ORS 183.482(8)(c). We focus on petitioner's Other Specified Anxiety Disorder, because PSRB did not find and does not argue on appeal that his Illness Anxiety Disorder bears any relationship to petitioner's dangerousness. Roff testified in detail at the 2017 hearing about petitioner's Other Specified Anxiety Disorder diagnosis. She explained that the diagnosis applies to individuals who exhibit significant symptoms characteristic of an anxiety disorder, but who do not meet the criteria for any full DSM-5 diagnosis; the diagnosis is appropriate when a treatment provider observes "something more" in an individual's behaviors than one would expect to see in a typical individual. Roff explained that petitioner's anxiety centers around the fact that he is known both in the hospital and in the community as a sex offender. The primary source of petitioner's anxiety is his fear of retaliation, whether retaliation that he may suffer in the future or that he perceives himself as having narrowly avoided in the past. For example, petitioner is certain that he would have been killed if he had not been able to overturn his prison sentence. According to Roff, however, that aspect of petitioner's anxiety is situational and normative, meaning that, despite the severity of petitioner's anxiety, it is not out of proportion to his reality; that is, to the threats he actually faces.

In finding that petitioner's Other Specified Anxiety Disorder renders him a substantial danger to others, PSRB expressly rejected Roff's opinion that petitioner's dangerousness resulted solely from his nonqualifying diagnosis of pedophilia, and therefore not from his qualifying Other Specified Anxiety Disorder. PSRB reasoned that "Roff's testimony and progress notes allow for the inference that [petitioner's] anxiety disorder makes him less likely to seek out psychiatric treatment, including sex offender treatment, which makes him a substantial danger to others." Because PSRB expressly rejected Roff's opinion based on its contrary findings of fact, we review whether substantial evidence supports those findings. Stated differently, "[a]n assertion of a finding of fact as part of an explanation for disregarding evidence is subject to attack if that fact relied upon is not, itself, supported by substantial evidence." Garcia v. Boise Cascade Corp. , 309 Or. 292, 296, 787 P.2d 884 (1990).

Viewed in that light, we conclude that the record lacks substantial evidence to support PSRB's finding, purportedly based on Roff's testimony and progress notes, that petitioner's "anxiety disorder makes him less likely to seek out psychiatric treatment, including sex offender treatment, which makes him a substantial danger to others. " (Emphasis added.) Roff's overall sense, based largely on her clinical experience with petitioner and her review of his extensive records of treatment with other providers, was that there was no risk that petitioner's anxiety could drive him toward sexual recidivism. In support of that opinion, Roff also cited a scientific meta-study that she had reviewed and that had examined whether a host of variables were correlated in any way with a risk of sexually reoffending. Roff explained, without objection, that the meta-study found no statistically significant correlation between anxiety and the risk for sexual recidivism.

Roff further explained that, in her opinion, petitioner's anxiety is primarily inhibitory; that is, it would tend to make it less likely for him to sexually reoffend. Roff acknowledged that petitioner's anxiety could lead him to leave the country and thus contribute to certain preoffense behaviors. And, when asked whether petitioner's anxiety would "prevent him or have any kind of impact on whether or not he participates" in sex offender treatment, Roff initially agreed that it could. Similarly, she seemingly accepted that petitioner's anxiety disorder "could influence whether or not he remains safe because it's influencing his ability to get treatment[.]" Roff later testified, however, that petitioner had stated "very clearly that he has no issue whatsoever" in participating in sex offender treatment outside the hospital and is "absolutely willing" to restart treatment in the community. Thus, Roff clarified, "if your real question is if you let [petitioner] out the door is the anxiety going to get in the way of him participating in a sex offender treatment program, I would say that the evidence points against that."

Given Roff's express testimony that petitioner's anxiety would not interfere with his participation in sex offender treatment, no reasonable person would rely on her testimony and the underlying progress notes-as PSRB purported to do-to draw the opposite inference, i.e. , that petitioner's "anxiety disorder makes him less likely to seek out psychiatric treatment, including sex offender treatment[.]" See ORS 183.482(8)(c) (substantial evidence is such evidence as would allow a reasonable person to make the finding in question). Thus, unless (and despite PSRB's apparent reliance only on Roff's testimony and progress notes) other evidence in the record supports that inference, PSRB erred in making that finding. See id . (requiring record to be "viewed as a whole").

Turning to the balance of the record, we conclude that it does not support PSRB's rejection of Roff's opinion and concomitant substitution of its own finding that petitioner's anxiety will prevent him from participating in treatment. See Garcia , 309 Or. at 296, 787 P.2d 884 (requiring that an agency's assertion of a factual finding as a basis to reject evidence be supported by substantial evidence). Notably, while petitioner resided at OSH from 1999 to 2008, as well as for some time after he returned to OSH in 2013, he participated in the sex offender treatment program offered at that facility. And, when petitioner was on a conditional release from OSH, he actively engaged in treatment, albeit while also demonstrating several highly concerning behaviors that ultimately led to the revocation of his conditional release. PSRB has not identified, nor have we discovered in our review, any evidence in the record that can support the inference that petitioner's anxiety will impede his participation in treatment.

Moreover, the record does not support the balance of PSRB's finding, namely, that petitioner's failure to participate in treatment "makes him a substantial danger to others." In arguing to us on appeal that petitioner's anxiety-and its ostensible consequence that he will not get the treatment he needs-"makes him even more dangerous than he otherwise would be," PSRB appears to argue that petitioner's anxiety disorder "renders" him dangerous by not lessening the danger already presented by his pedophilia. Whatever merit that argument might otherwise have, we must reject it here. As noted, PSRB offers that argument for the first time in its briefing on appeal. PSRB's order did not, however, provide any rationale-much less that one-for its finding that petitioner's failure to participate in treatment "makes him a substantial danger to others." And, it is PSRB's obligation to provide its reasoning in its order; we will not speculate as to what PSRB's reasoning might have been, nor can we rely on reasoning PSRB might belatedly provide in its briefing on appeal. See Castro , 232 Or. App. at 85-86, 220 P.3d 772 ("Our duty is to evaluate the board's logic, not supply it."); Knotts , 250 Or. App. at 455, 280 P.3d 1030 (noting that our consideration is limited to the reasoning stated in the challenged order). As a result, the finding that petitioner's failure to participate in treatment "makes him a substantial danger to others" is not supported by substantial evidence in the record. Knotts , 250 Or. App. at 455, 280 P.3d 1030 (substantial evidence standard requires that an order reveal the logic that led an agency to draw the inferences that it did from the evidence it considered).

As for petitioner's potential to engage in preoffense behaviors, we recognize that Roff's May 2015 patient progress notes did identify that one "significant connection" between petitioner's anxiety and his risk of reoffending. Specifically, Roff noted petitioner's fear, discussed above, of retaliation from others due to his status as a sex offender. Roff believed that petitioner would likely leave the State of Oregon and possibly the United States altogether to avoid that threat. Roff further believed that, once outside of the United States, petitioner's access to potential victims would be greater and the perceived threat of reincarceration-which otherwise would tend to inhibit reoffending-would decrease. As Roff summarized,

"[petitioner's] anxiety over his future safety makes it likely that he will move abroad, where he will have access to a pool of vulnerable victims and where he is likely to reoffend. However, while his anxiety is indirectly related to his future risk of sexual offending, I cannot state that it is a direct cause."

To the extent that PSRB contends that this testimony supports the inference that petitioner's anxiety makes him more dangerous than his unregulated pedophilia acting alone, we find two difficulties with that argument. The most obvious difficulty is that the challenged order bears no indication that PSRB perceived the evidence in that manner; as a result, that inference would be unsupported for the same reason as the inference regarding petitioner's participation in treatment. The other difficulty is that, even if, in isolation, Roff's testimony-that petitioner's anxiety would not be the "direct cause" of sexual reoffending-can support the inference that it nonetheless would be a cause of that danger, it is, at least in the absence of explanation from PSRB, too thin a reed to bear that weight when viewed in light of the record as a whole.

Specifically, that understanding of Roff's testimony fails to grapple with, among other things, the view of OSH's risk review panel. See Younger , 305 Or. at 354, 752 P.2d 262 ("The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." (Internal quotation marks omitted.)). The risk review panel, which relied substantially on the recommendation of Roff and petitioner's interdisciplinary treatment team, was itself composed of mental health professionals, including a forensic risk psychologist, a forensic social worker, a forensic supervising psychiatrist, and an Oregon Health Authority PSRB liaison. On behalf of OSH, the risk review panel supported petitioner's jurisdictional discharge based, in part, on its finding that,

"[a]lthough [petitioner] has jurisdictional diagnoses of Illness Anxiety Disorder and Other Specified Anxiety Disorder, these diagnoses and resultant symptoms do not seem to influence his future dangerousness and engaging in future pedophilic behaviors. Anxiety symptoms generally inhibit sexual desire and activity. Anxiety can occasionally be relieved by compulsive masturbatory behaviors [such as petitioner had exhibited], but that is a very different activity from engaging in predatory pedophilic behaviors."

The risk review panel recognized that petitioner continues to be "at elevated risk for engaging in deliberate, planned and targeted pedophilic behaviors when unsupervised in the community," but the panel clarified that "this risk is solely due to his diagnosis of a Pedophilic Disorder and not due to any other jurisdictional diagnosis." (Emphasis added.) Rather than consider Roff's testimony in light of the risk review panel's assessment, PSRB appears to have disregarded the panel's view entirely.

PSRB's finding further disregards other testimony presented at the hearing. Dr. Johnson-a forensic psychologist-also testified on behalf of petitioner. Like Roff, he testified that petitioner is "undoubtedly" at risk to commit further sexual offenses, but that risk is not causally related to anything other than petitioner's Pedophilic Disorder. When asked about petitioner's anxiety, Johnson stated:

"Anxiety is part of the human condition. We all have anxiety. Anxiety ebbs and flows for everybody on the face of the earth. [Petitioner] is no different. He has certainly experienced an exacerbation of his anxiety because of his offense history and interaction with the criminal justice system. He has good grounds to be anxious. But once again it did not cause him to develop pedophilia and it does not drive his pedophilia. So to the extent that it is interactive at all, the hope, the expectation is that it will be a reminder if and when he begins to engage in slippery thinking or slippery behavior that could lead to an offense. *** So in that sense I would agree that it stands a very good chance of being inhibitory. I can think of no arguments to suggest that it actually promotes or encourages him to sexually act out."

When asked what role of cause and effect petitioner's anxiety has for his dangerousness in the community, Johnson replied, "none whatsoever." Johnson further testified that, in his opinion, petitioner's response to treatment and willingness to participate in treatment is independent of his anxiety. Specifically, when asked whether the fact that petitioner has anxiety would influence whether or not he will go to treatment, Johnson indicated that it would not. As with the opinion of the risk review panel, there is no indication in PSRB's order that it gave Johnson's testimony any consideration at all, nor that there was substantial evidence in the record to support PSRB's rejection of that testimony.

In recounting the evidence that PSRB disregarded without explanation in favor of its own opinion, we note that this is not a case where PSRB simply found one doctor's opinion more persuasive than another. See Minor v. SAIF , 290 Or. App. 537, 551, 415 P.3d 1107 (2018) (citing Armstrong v. Asten-Hill Co. , 90 Or. App. 200, 206, 752 P.2d 312 (1988) ("[I]f there are doctors on both sides of a medical issue, whichever way the Board finds the facts will probably have substantial evidentiary support.")). Rather, in this case, PSRB, without explanation, (a) formed its own opinion that petitioner's anxiety would impede his participation in sex offender treatment, something that no doctor (or any other witness) endorsed; (b) implicitly found, based upon Roff's testimony or other unidentified evidence in the record that petitioner's anxiety would cause him to travel to other countries where he would present an increased threat to others; or (c) both of those things. And if, in fact, either rationale is the basis of PSRB's finding that the nexus at issue exists, it was required to disclose that reasoning and the facts to support it in its order, which it did not do. As a result, we conclude that PSRB's order is not supported by substantial evidence.

In concluding that substantial evidence does not support PSRB's finding-that petitioner suffers from a qualifying mental disease or defect that renders him a substantial danger to others-we are not suggesting that a qualifying diagnosis, such as petitioner's anxiety disorder, could never combine with a nonqualifying diagnosis, such as his pedophilia, so as to warrant PSRB jurisdiction. Rather, we are simply not persuaded that, in this case, substantial evidence in this record supports PSRB's finding that petitioner's Other Specified Anxiety Disorder in any way caused him to be dangerous in a manner that his Pedophilic Disorder did not already cause. Without that evidence, neither that finding, nor the resultant conclusion that petitioner remains subject to PSRB's jurisdiction, can stand. Accordingly, we reverse and remand the challenged order. See ORS 183.482(8)(c) ("The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record."); cf. Drew v. PSRB , 322 Or. 491, 499, 909 P.2d 1211 (1996) (remanding order in case in which "the record contain[ed] substantial evidence that could support PSRB's finding that petitioner was a substantial danger to others, but PSRB did not connect its decision to that evidence").

Reversed and remanded.

      In 1996, petitioner was found guilty of three counts of sodomy in the first degree, five counts of using a child in a display of sexually explicit conduct, five counts of encouraging child sexual abuse in the first degree, three counts of sodomy in the third degree, one count of attempted sodomy in the first degree, and one count of attempted compelling prostitution; he received a 100-month prison sentence at that time. However, after petitioner successfully challenged his convictions in post-conviction proceedings, he received a new trial, ultimately resulting in a judgment of guilty except for insanity for the same offenses. The finding of guilty except for insanity appears to have been based to some extent on a "psychotic break" petitioner exhibited while in custody pending trial. He has since, however, admitted that those symptoms were merely an act of malingering intended to avoid incarceration.

      ORS 161.341 (2011) provided, in relevant part:
      "(1) If at any time after a person is committed under ORS 161.315 to 161.351 to a state hospital or a secure intensive community inpatient facility, the superintendent of the hospital or the director of the secure intensive community inpatient facility is of the opinion that the person is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others or that the person continues to be affected by mental disease or defect and continues to be a danger to others, but that the person can be controlled with proper care, medication, supervision and treatment if conditionally released, the superintendent or director shall apply to the agency having jurisdiction over the person for an order of discharge or conditional release. The application shall be accompanied by a report setting forth the facts supporting the opinion of the superintendent or director. If the application is for conditional release, the application must be accompanied by a verified conditional release plan. The agency shall hold a hearing on the application within 60 days of its receipt. Not less than 20 days prior to the hearing before the agency, copies of the report shall be sent to the Attorney General."
      Among other things, amendments to ORS 161.341 after 2011 replaced the phrase "mental disease or defect" with "qualifying mental disorder," consistent with similar replacements throughout the statutory scheme. Because ORS 161.341 (2011) was in effect at the time of petitioner's hearing, we, like the parties, apply that version of the statute. We express no opinion as to how our analysis might be different-if at all-under the statute as amended.

      Petitioner's various mental health diagnoses and their significance as to PSRB's jurisdiction are discussed in greater detail below.

      The legislature did not expressly assign the burden of proving the bases for PSRB jurisdiction to either party. See ORS 161.351. However, PSRB has promulgated a rule assigning the burden of proof, which depends on the type of hearing, as follows:
      "(5) Request for conditional release or discharge of the patient by the State Hospital under ORS 161.341(1) : the state must prove the person is not appropriate for conditional release or discharge."
      OAR 859-050-0055(5). Although petitioner, and not OSH, appears to have initiated the 2017 hearing at issue in this appeal, PSRB appears to have treated it as one pursuant to OSH's request and, as with the 2015 hearing, assigned the burden of proof to the state. By the time of the 2017 hearing, OSH had joined petitioner's renewed request, and, in its briefing, PSRB expressly agrees that PSRB bore the burden of proof under the rule.

      In describing petitioner's diagnostic history, we do not suggest that those diagnoses , themselves, would qualify petitioner for PSRB jurisdiction; rather, as we explain below, PSRB's jurisdiction depends upon a separate determination of dangerousness, which may or may not accompany those diagnoses.

      On appeal, PSRB goes to considerable lengths to defend its classification of petitioner's Other Specified Anxiety Disorder as a qualifying mental disease or defect. Petitioner neither explicitly challenges nor concedes that classification. Roff testified that she believed only the Illness Anxiety Disorder, and not the Other Specified Anxiety Disorder, would qualify as a "mental disease or defect." Nonetheless, given PSRB's determination that petitioner's Other Specified Anxiety Disorder qualified as a "mental disease or defect" and the lack of any substantial argument from petitioner as to why that classification is incorrect, we accept PSRB's classification for purposes of this appeal.

      As the quoted text and above discussion suggest, PSRB in its order and the parties in their briefing on appeal have used various terms to describe the causal relationship understood to be required by ORS 161.351(1) (2011), including, among others, "renders," "makes," and "nexus." We do not understand there to be any intended distinction between those terms and, like the parties, we use them interchangeably here.

      We discuss below whether the balance of that finding-that the fact that petitioner will not seek out treatment "makes him a substantial danger to others"-is supported by the record, as well as whether PSRB's reasoning in that regard is sufficient.

      Petitioner was conditionally released from OSH from approximately 2008 until 2013, when PSRB revoked his release for violating its terms. See generally ORS 161.336 (providing for conditional release of individuals under PSRB jurisdiction).


author: DeVORE, J.

text:
    Gregory James BENTLEY, Petitioner-Appellant, v. MULTNOMAH COUNTY SHERIFF'S OFFICE, Respondent-Respondent.
    A165143
    Court of Appeals of Oregon.
    Argued and submitted March 15, 2019. May 22, 2019
    Iván Resendiz Gutierrez, Portland, argued the cause for appellant. Also on the briefs were P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP.
    Jacqueline Kamins argued the cause for respondent. Also on the brief was Jenny M. Madkour.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.
   DeVORE, J.

Petitioner appeals from a judgment that denied his petition under ORS 166.274 for relief from a firearm restriction resulting from a robbery conviction. He argues that the trial court erred because he established that he does not pose a threat to the safety of the public or to himself. We agree and reverse.

We review the denial of a petition for relief from Oregon's firearms bar de novo on the record. ORS 166.274 (10)(a). Given that standard of review, "we independently assess and evaluate the evidence and reweigh the facts and reassess the persuasive force of the evidence." Dept. of Human Services v. D. W. M. , 296 Or. App. 109, 112, 437 P.3d 1186 (2019). At the same time, "we give considerable weight to the findings of the trial judge who had the opportunity to observe the witnesses and their demeanor in evaluating the credibility of their testimony." Fitts v. Case , 243 Or. App. 543, 552 n. 3, 267 P.3d 160 (2011). As we explain later, the trial judge did not make credibility findings in this case.

In 1997, petitioner pleaded guilty to two of three counts of bank robbery under 18 USC section 2113(a) for committing unarmed robberies at two banks and one credit union. The federal trial court sentenced him to 35 months in prison, two years of supervised release, and payment of $ 6,933 in restitution. Petitioner served his term of imprisonment without issue. As conditions of supervised release, he was required to submit to random drug testing and warrantless searches of his person and property. He was also ordered not to commit another crime and not to possess a firearm. Petitioner satisfied the conditions of his supervised release without incident. Over time, he paid the restitution sum in full. After satisfying those conditions, his probation officer sent him a letter in 2002, saying:

"Congratulations on a job well done. *** Please be advised, however, that the right to bear a firearm is a right which cannot be returned to you at this time due to budget constraints by the Bureau of Alcohol, Tobacco, and Firearms."

(Boldface in original). Since his felony offenses in 1997, petitioner has been prohibited from owning or possessing a firearm.

In 2017, 20 years after the offenses, petitioner petitioned the trial court pursuant to ORS 166.274 for relief from the firearm restriction. In relevant part, that statute provides:

"If the petitioner seeks relief from the bar on possessing or purchasing a firearm, relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner."

ORS 166.274(7). To support his petition, petitioner attached his own affidavit, a copy of the letter from his probation officer, a copy of the judgment of conviction, and four letters from friends, family, and neighbors.

In response, the sheriff's office submitted a trial memorandum that recited petitioner's short criminal history, relevant statutes, and the statutory standard for granting relief. The sheriff's office took no position on whether petitioner could satisfy his statutory burden to show that he does not pose a threat to himself or others.

In the hearing before the trial court, three witnesses testified-petitioner, his son, and his daughter-in-law. The testimony was consistent with the petition and supporting materials. All testified that petitioner is remorseful about his crime, that petitioner had successfully completed his prison sentence and probation, that he has been a law-abiding citizen since 1997, and that he has lived a peaceful and honest life for the past 20 years.

Petitioner explained that he is 66 years old and wants to go hunting with his son and his family. He had been a rancher and a logger, but he is now retired and disabled. Due to his health problems, he lives in Portland with his son and daughter-in-law. He is a liver cancer survivor and has had "degenerative disk disease in [his] lower back" for years. He also suffers from osteoporosis. When asked which medications his physician has prescribed for his health conditions, he stated that he takes "calcium and things like that"

as well as Oxycodone "a couple of times a week" for his back pain but that he "rarely use[s] all [his] medication" because he does not "like taking pills." He said that he does not "get high on it" and that he would not use firearms if he were drinking or taking his medications.

Petitioner recounted the crimes that he committed 20 years before. The woman he was dating at the time in 1997 was behind on her mortgage payments and needed "several thousand dollars to keep living in her home." He intended the robberies to help her with payments necessary to keep her home. He committed each robbery using a note, which essentially read, " 'This is a robbery. *** Give me the money[.] *** Nobody will get hurt.' " He did not use any weapons and did not hurt anyone physically.

During the final robbery, petitioner said that he had noticed that the bank teller looked "very scared" and he "felt awful about it." He "had no intention to hurt anybody," and he "sure as hell didn't want to scare anybody that bad." Seeing that, petitioner "knew what [he] was doing was wrong." That day, he turned himself in to the police. He testified:

"I thought it would be better for all concerned, I sure as hell didn't want to get shot at or nothing. So I left the car, went up an alley, and I went into a tavern and I made a phone call from the tavern there to the Spokane police department and told them where I was. And they told me to stay there and they would come and get me."

When the officers arrived, he met them in the parking lot and "followed their instructions completely." He said that he regrets his prior actions "every day of [his] life" and that he "wish[es] [he] could take it back."

After serving his sentence, petitioner worked to pay his restitution. The obligation took about eight years because it was difficult to find work, but he made sure to "make the payments religiously every month" even if he could afford only the minimum payment. He has not had any other arrests or convictions in the 20 years since the offenses.

Petitioner testified that hunting has always been an important part of his life. He had hunted since he was 12 years old when his grandfather taught him how to hunt. He wishes to go hunting with his son, particularly before his health deteriorates further and prevents him from hunting. He thinks that he has about three to five years before that happens.

Petitioner stressed that he is not a violent person and that he would not pose a threat to himself or others if his gun rights were restored. He plans to use firearms responsibly by hunting with his family and practicing target shooting.

Petitioner's son described his father as an honest and peaceful man. Although he has seen his father in challenging situations, his father has never acted violently. He agreed that his father does not pose a threat to himself or to others. He testified that he would like to be able to have his father join him target shooting like they did when both were younger. Petitioner's son hunts every weekend during deer season, one week out of the year for elk, and turkey hunting every spring. He would like his father to join the family in those outdoor activities.

Petitioner's daughter-in-law testified that she has never seen petitioner act in a violent manner and that she has no reservations about petitioner owning or possessing firearms. She shared her husband's desire to have petitioner join the family hunting and camping.

Petitioner offered letters of friends. One wrote:

"I've had the pleasure of knowing [petitioner] for the last 10 years. He lived on the property adjacent to a recreational parcel I own in Stevens County, WA during that time.
"I've found [petitioner] to be a responsible and trustworthy neighbor and friend. I have trusted him with many things, (for instance, he has a key to my cabin) and he has never let me down.
"I know [petitioner] is remorseful and embarrassed for his crime in the past and can say with complete confidence he would never break the law again.
"I would be happy to provide further on my opinion of [petitioner]."

A neighbor wrote:

"I've known [petitioner] for about 8 years. I own a 10-acre parcel near the property he lived on in Stevens County, WA.
"[Petitioner] has always been a great neighbor and very polite, nice man. One thing that comes to mind is when [petitioner] found some kittens in the woods that had been abandoned by their mother. He took care of them until they were big enough to be adopted out.
"[Petitioner] is a good man, and I know he will not repeat the mistakes of his past."

Petitioner's counsel argued that petitioner met his burden and that the court should grant his petition.

The sheriff's office did not oppose petitioner's evidence, did not submit any evidence, and did not offer any witness testimony. Counsel for the sheriff's office observed, "I will leave it to the Court without much argument, if any, from the sheriff's office on whether or not petitioner has met his burden." The sheriff's office did argue that the underlying offense was a serious felony which "should go into consideration, but recognizing it was twenty years ago." It cautioned the court that "there's no evidence to suggest that [petitioner is] abusing" his prescribed opiates "but it does give some pause to think about restoring the rights of somebody that is, in fact, using something that might impair their judgment. But with that said, I will leave it to the Court on whether or not he's met his burden."

Before deciding, the court requested additional information from petitioner on two points: (1) describing whether he had used a firearm in the robberies and (2) clarifying his use of Oxycodone. In response to the first inquiry, petitioner referred to his testimony and attached additional documents from the case 20 years ago. The documents showed that he did not use a firearm in the commission of the crimes. As to the second inquiry, petitioner referred to his testimony describing his medication, the prescribed doses, and his assurance that he takes the medication as prescribed. There was no evidence that he abuses the medication.

Upon that record, the trial court denied the petition. The court's order stated:

"The Court, having heard arguments, after further consideration of the pleadings and supplemental information and being fully advised, finds the petitioner did not prove by clear and convincing evidence pursuant to ORS 166.274 that petitioner has been rehabilitated and does not pose a threat to the safety of the public or the petitioner."

The court did not make specific findings of fact nor any express statements about the credibility of petitioner or the other witnesses. With no further explanation, we are not convinced that the court made implicit findings as to the credibility of petitioner or his witnesses. The court's order does not necessarily imply that the court disbelieved the facts recounted by petitioner or the witnesses, so much as that the court was not persuaded by clear and convincing evidence that petitioner posed no risk after having committed robberies 20 years before.

On appeal, petitioner assigns error to the trial court's denial of his petition. He argues that he is an "honest, caring, peaceful, law-abiding outdoorsman who is devoted to his family, who acknowledges that he made a mistake, who has paid for that mistake, and who has earned the respect and trust of his family, friends, and neighbors." The sheriff's office argues that petitioner failed to carry his burden that he does not pose a threat to the safety of the public or himself.

Undertaking de novo review, we conclude that petitioner demonstrated by clear and convincing evidence that he does not pose a threat to the safety of the public or himself. Petitioner's crimes occurred 20 years ago. He fully served his term of imprisonment and successfully completed his supervised release obligations. He worked diligently for eight years to pay the restitution sums in full. He shows remorse for his mistakes, regretting his prior actions "every day of [his] life." Over the following two decades, he has not had an arrest or conviction for any crime. His family and friends describe an honest, peaceful man. His reason for possession and use of firearms is to facilitate his involvement with his family in target shooting, hunting trips, and outdoor recreation.

Notwithstanding serious misjudgment 20 years ago, petitioner has established that he does not now pose a threat to the safety of the public or to himself. For that reason, the trial court erred when it denied petitioner relief under ORS 166.274(7) from the firearm restriction attendant to the conviction for the past offenses.

Reversed and remanded for entry of judgment granting petition.

      Oregon statute bars possession of a firearm by an individual who has been convicted of a felony. ORS 166.250(1)(c)(C) ; ORS 166.270.


author: PER CURIAM

text:
    Timothy L. AIKENS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
    A166407
    Court of Appeals of Oregon.
    Submitted May 8, 2019. July 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for petitioner.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.
   PER CURIAM

Petitioner seeks judicial review pursuant to ORS 144.335 of a final order of the Board of Parole and Post-Prison Supervision following a 2017 murder review hearing under ORS 163.105. In that order, the board determined that petitioner failed to prove that he was likely to be rehabilitated in a reasonable period of time and scheduled his next murder review hearing four years out. Petitioner contends that the board's determination regarding the likelihood of his rehabilitation is not supported by substantial evidence or substantial reason. On review of the record, we disagree. Petitioner also contends that the board's decision to schedule his next murder review hearing four years out violates the state and federal constitutional prohibitions on ex post facto laws because, at the time of his crimes, the board was required to schedule murder review hearings biennially. That argument, as petitioner acknowledges, is foreclosed by our decision in Morrison v. Board of Parole , 277 Or. App. 861, 374 P.3d 948, rev. den. , 360 Or. 465, 384 P.3d 152 (2016).

Affirmed.

      We recently reversed the board's final order resulting from petitioner's 2015 murder review hearing on the ground that one of the factual findings was not supported by substantial evidence and remanded to the board to reconsider its decision without relying on that finding. Aikens v. Board of Parole , 298 Or. App. 14, 446 P.3d 79 (2019). That decision does not moot this case because the board will not necessarily find in petitioner's favor on remand. That means a favorable ruling in this case would have a practical effect on petitioner's rights.