author: SHORR, J.

text:
    AMALGAMATED TRANSIT UNION, DIVISION 757, Respondent, v. TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Petitioner.
    A166250
    Court of Appeals of Oregon.
    Argued and submitted January 16, 2019. June 26, 2019
    Nicholas H. Pyle, Portland, argued the cause for petitioner. Also on the briefs were Bruce L. Campbell and Miller Nash Graham & Dunn LLP.
    Henry J. Kaplan, Portland, argued the cause and filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Tri-County Metropolitan Transportation District of Oregon (TriMet) petitions for judicial review of a final order of the Employment Relations Board (ERB) in favor of Amalgamated Transit Union, Division 757 (ATU). In that order, ERB concluded that TriMet had violated ORS 243.672(1)(g), which establishes that a public employer commits an unfair labor practice if it violates an agreement to arbitrate, when it refused to arbitrate a grievance concerning TriMet's decision to enter into contracts with nonunion shuttlebus operators. We review ERB's findings of fact for substantial evidence and its conclusions for legal error. Portland Fire Fighters' Assn. v. City of Portland , 181 Or. App. 85, 87, 45 P.3d 162 (2002) ; ORS 183.482(8)(a). For the reasons explained below, we conclude that ERB did not err. Accordingly, we affirm.

Petitioner does not contend before us that ERB's order is unsupported by substantial evidence. Rather, petitioner contends that ERB legally erred in construing the relevant contract. Because ERB's findings are supported by substantial evidence, we take the following facts from ERB's order.

TriMet is a public entity that operates public bus and rail services in the Portland metropolitan area. TriMet employees, including its bus operators, are represented by ATU. The relationship between TriMet and ATU is governed by a collective bargaining agreement, known as the Working Wage Agreement (WWA). The WWA establishes TriMet's obligations to its employees and includes procedures for the filing of grievances by employees or ATU for alleged violations of those obligations.

In 1998, TriMet began to receive and administer Job Access and Rural Commute (JARC) grants that are provided by the Federal Transit Administration (FTA). JARC grants are intended to provide commuting services for people living in urban areas who commute to underserved rural or suburban areas for work. In the circumstances at issue here, the FTA provides the grant money directly to TriMet, and then TriMet oversees and administers a competitive process of awarding the grant money to subrecipients-typically nonprofit organizations-to run shuttlebuses on routes that are not part of TriMet's "fixed route" services. TriMet enters into contracts with JARC grant subrecipients, under which the subrecipients agree to provide certain services under specified conditions and to allow for oversight and auditing by TriMet. In addition to administering the JARC grants, TriMet is occasionally required to make "in-kind" contributions to JARC-funded projects, which may include but are not limited to contributions directly to JARC grant subrecipients.

Starting in 2014, TriMet contracted with Ride Connection, a nonprofit shuttlebus operator, to run certain bus lines in exchange for JARC grant funds. Ride Connection bus operators are not members of ATU. In 2015, ATU filed the grievance that is the basis for this appeal (the shuttle grievance). The amended shuttle grievance included the allegation that TriMet's contract with Ride Connection violated Article 2, section 1, paragraph 9 of the WWA-also known as the "lines of the district" provision-which provides that "all vehicles run on the lines of the District shall be run by Operators should they be operated," with limited categorical exceptions. In that context, "operators" refers to ATU members as opposed to nonunion workers such as Ride Connection employees. The grievance form used by ATU described the dispute as follows:

"TriMet has entered into [a] partnership with the Ride Connection to create [a] bus service. These routes [were] funded in partnership with TriMet. These routes should be offered to TriMet ATU operators as described in our working wage agreement."

The grievance requested as relief that TriMet "allow TriMet employees to service and maintain" the JARC bus routes.

ATU requested a hearing under the grievance provision of the WWA, which reads as follows:

"It is hereby agreed that the properly accredited officers of the District shall meet with the properly accredited officers of the Union on all grievances relating to any alleged violation of any provision of this Agreement[.] *** All such grievances when filed by the Union or an employee shall be processed through the procedures set out in Sections 3 and 4 of this article."

Section 3 of the WWA provides a multistep process, ending with binding arbitration, that governs the filing and processing of grievances. At each step prior to arbitration, ATU and TriMet will attempt to resolve the grievance without arbitration, but at no point is TriMet authorized to unilaterally reject a grievance or refuse to proceed to the next step if the parties cannot resolve a grievance.

If the parties cannot resolve a grievance between themselves, binding arbitration is the mandatory final step in the grievance process.

TriMet refused to process the shuttle grievance or participate in arbitration, explaining that the Ride Connection contract did not implicate the WWA because TriMet was merely passing federal JARC grant funds to Ride Connection rather than entering into an employer-employee relationship. In response, ATU filed a claim with ERB alleging that TriMet's refusal to process the grievance was an unfair labor practice. The complaint was first reviewed by an administrative law judge (ALJ), who issued a recommended order concluding that TriMet's refusal to arbitrate constituted a violation of ORS 243.672(1)(g), which, as noted, provides that it is an unfair labor practice for a public employer to violate an agreement to arbitrate. TriMet objected to the recommended order. ERB took review and held oral argument. Ultimately, ERB ruled that the ALJ's recommended rulings were correct and entered a final order to that effect. ERB explained its decision as follows:

"In light of the arbitration clause's clearly broad scope, and the absence of any applicable exclusion, the [WWA] is unambiguous that grievances alleging violations of the 'Lines of the District' provision are arbitrable. Generally, when express contract language is unambiguous, our analysis ends, and we do not review extrinsic evidence to interpret the contract."

Despite that general conclusion, ERB later considered the extrinsic evidence offered by TriMet but concluded that the evidence was relevant only to the meaning and scope of the "lines of the district" provision and not the question of whether the shuttle grievance was arbitrable.

On appeal, TriMet assigns error to ERB's ruling. The decisive issue is whether the arbitration provision in the WWA compels TriMet to arbitrate the shuttle grievance. As we understand TriMet's argument on appeal, it acknowledges that, under the grievance provision of the WWA, it has to arbitrate "any alleged violation of any provision" of the WWA. TriMet contends, however, that the alleged violation of the WWA's "lines of the district provision" in this case is not a dispute that arises under the WWA.

Collective bargaining agreements-like the WWA in this case-"generally are interpreted in the same manner as are other contracts." OUS v. OPEU , 185 Or. App. 506, 512, 60 P.3d 567 (2002). First, the court must examine the text of the disputed provision in the context of the agreement as a whole. Id . (citing Yogman v. Parrott , 325 Or. 358, 361, 937 P.2d 1019 (1997) ). At the first step, the court also may consider evidence of "the circumstances underlying the formation of the contract." Batzer Construction, Inc. v. Boyer , 204 Or. App. 309, 317, 129 P.3d 773, rev. den. , 341 Or. 366, 143 P.3d 239 (2006). If the provision is unambiguous, no further analysis is necessary or appropriate, and the court must "give the appropriate effect to the parties' intentions." Industra/Matrix Joint Venture v. Pope & Talbot , 341 Or. 321, 332, 142 P.3d 1044 (2006) (citing Yogman , 325 Or. at 361, 937 P.2d 1019 ). A provision is ambiguous only if it is reasonably susceptible to more than one plausible interpretation. Portland Fire Fighters' Assn. , 181 Or. App. at 91, 45 P.3d 162.

As described, the arbitration provision in the WWA broadly requires TriMet to arbitrate with ATU on "all grievances relating to any alleged violation of any provision of this Agreement." (Emphases added.) The WWA additionally provides that all grievances "shall be processed through the procedures" set out in the WWA that provide guidelines for arbitration if the parties are unable to otherwise resolve a grievance. The WWA does not include language authorizing TriMet to unilaterally refuse arbitration and does not make the right to arbitration contingent on ATU filing a grievance that is certain or even likely to succeed on the merits. To the contrary, the WWA obligates TriMet to arbitrate with ATU over "any alleged violation" of the agreement so long as ATU complies with the requisite procedures set forth in the WWA. (Emphasis added.) In short, the pertinent language in this case is unambiguous; the WWA clearly provides that TriMet will arbitrate all grievances alleging a violation of the WWA that cannot be resolved by the parties themselves, subject only to limited categorical exclusions not applicable to this case.

Based on our analysis of the text of the arbitration provision in the context of the WWA as a whole, we conclude that ERB did not err when it ruled that TriMet had committed an unfair labor practice in violation of ORS 243.672(1)(g) by refusing to arbitrate the shuttle grievance. ATU's grievance alleged that TriMet had violated the "lines of the district" provision of the WWA by contracting with Ride Connection, which does not employ ATU members as operators. The "lines of the district" provision is a substantive provision of the WWA, under which "all vehicles" on the "lines of the district" must be run by ATU-member operators. The unambiguous language of the arbitration provision requires TriMet to submit to binding arbitration when, as here, a grievance relates to "any alleged violation of any provision" of the WWA so long as one of the narrowly defined exclusions does not apply. Cf. Portland Police Assn. v. City of Portland , 248 Or. App. 109, 114, 273 P.3d 192 (2012) (concluding that a provision of a collective bargaining agreement providing that "any disagreement" over wages "shall be subject to [arbitration]" unambiguously applied to a grievance over a change in the calculation of pension benefits). Even if it was likely or certain from the evidence in the record that TriMet had not violated the WWA for the reasons alleged by ATU in its grievance, TriMet was nevertheless required to process the shuttle grievance and engage in binding arbitration with ATU. At least in this particular context, it is the role of the arbitrator, not ERB or this court on appeal from an ERB order, to determine whether ATU's grievance is meritorious.

TriMet additionally contends that ERB erred by failing to consider extrinsic evidence of the circumstances underlying the formation of the WWA-and specifically the "lines of the district" provision-before determining whether the shuttle dispute was subject to arbitration. As noted, courts may consider extrinsic evidence at the first step of contract analysis to the extent that it explains the circumstances under which the agreement was made and can place the judge in the position of the parties whose language is being interpreted. Milne v. Milne Construction Co. , 207 Or. App. 382, 389, 142 P.3d 475, rev. den. , 342 Or. 253, 149 P.3d 1212 (2006) (citing Batzer Construction, Inc. , 204 Or. App. at 317, 129 P.3d 773 ). But TriMet's argument that ERB erred in its consideration of extrinsic evidence is unavailing. Although ERB initially declined to consider extrinsic evidence, it then concluded that the extrinsic evidence presented by TriMet was not pertinent to the scope of the arbitration provision of the WWA. ERB correctly determined that TriMet's extrinsic evidence related only to the scope and meaning of the "lines of the district" provision-namely, whether the JARC contracts involved bus routes that were covered by that provision as the parties understood it-which went to the merits of the shuttle grievance and did not provide any guidance on the predicate question of whether that grievance was arbitrable. Because TriMet did not present ERB with extrinsic evidence that was pertinent to the question of whether the shuttle grievance was arbitrable, ERB did not err when it declined to rely on extrinsic evidence to conclude, as TriMet contended, that the shuttle grievance was not subject to the WWA.

Finally, TriMet argues that ERB erroneously focused its legal analysis on the "positive-assurance test," which provides that there is a presumption in favor of arbitration unless ERB can say "with positive assurance" that the arbitration clause cannot be construed to cover the particular grievance at issue. See Portland Fire Fighters' Assn. , 181 Or. App. at 96, 45 P.3d 162 (describing the positive-assurance test). TriMet contends that ERB erred when it applied the positive-assurance test without first determining whether the arbitration provision is ambiguous.

TriMet is correct that ERB may not rule on the meaning and applicability of an arbitration clause in a collective bargaining agreement based on its application of the positive-assurance test if ERB has not initially determined at the first level of contract analysis that the text of the clause is ambiguous. See OUS , 185 Or. App. at 512, 60 P.3d 567 ("If the text [of a disputed contract clause] is unambiguous, no further analysis is warranted."). Put differently, the positive-assurance test does not replace or reframe ERB's obligation to first consider the text of the clause in context. See Portland Fire Fighters' Assn. , 181 Or. App. at 96, 45 P.3d 162 (describing the positive-assurance test as a "relevant third-level maxim[ ] of contract construction"). At that first level, ERB should not presume that the parties intended to arbitrate or resort to maxims of contract construction. Instead, ERB should determine only whether the text is reasonably susceptible, in relevant part, to more than one plausible meaning. If it is not, "unambiguous contracts must be enforced according to their terms." Id. at 91, 45 P.3d 162 (internal quotation marks and citation omitted).

We accept the foregoing limitation on ERB's analysis of collective bargaining agreements; nevertheless, TriMet's argument in this case still does not succeed. Notwithstanding ERB's references to the positive-assurance test, ERB correctly determined at the first level of analysis that the shuttle grievance was covered by the "express" and "unambiguous" language of WWA's arbitration clause and based its ultimate ruling on that conclusion. As noted above, ERB concluded that the WWA is "unambiguous that grievances alleging violations of the 'Lines of the District' provision are arbitrable."

Although ERB invoked the positive-assurance test in its order, the invocation was not necessary to ERB's decision regarding the application of the arbitration clause of the WWA to the shuttle grievance. Indeed, there is nothing to suggest that ERB acted under a rebuttable presumption in favor of arbitration. To the extent that ERB's order describes or applies the positive-assurance test in favor of arbitration, those comments are necessarily dicta in light of ERB's earlier conclusion that the arbitration provision of the WWA is unambiguous. See ORS 183.482(8) (stating that the court shall set aside, modify, or remand an order for further action "if the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action" (emphasis added)); cf. Columbia Pacific v. City of Portland , 289 Or. App. 739, 759, 412 P.3d 258 (2018) (rejecting a challenge to an agency decision in part because "the reasoning to which [the petitioner] objects is dictum ," and the agency "indicated that its holding *** did not rely on that reasoning"). Accordingly, we conclude that ERB did not commit legal error when interpreting the WWA.

To summarize, ERB did not err when it ruled that TriMet had violated ORS 243.672(1)(g) by refusing to process ATU's shuttle grievance, because the grievance is encompassed by the broad and unambiguous language of the arbitration provision of the WWA. Although ERB erroneously suggested in dicta that the positive-assurance test applied to its analysis, ERB committed no legal error when it ruled that the shuttle grievance was arbitrable.

Affirmed.

      ORS 243.672 provides, in part:
      "(1) It is an unfair labor practice for a public employer or its designated representative to do any of the following:
      "* * * * *
      "(g) Violate the provisions of any written contract with respect to employment relations, including an agreement to arbitrate or to accept the terms of an arbitration award, where previously the parties have accepted arbitration awards as final and binding upon them."

      Both before ERB and on appeal, the parties dispute whether ATU should prevail on the merits of its grievance-that is, whether TriMet in fact violated the "lines of the district" provision of the WWA by contracting with a nonunion shuttlebus operator. For the reasons described above, that question is not relevant to our resolution of this appeal, and we do not address it.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF R. E. F., aka R. R. F., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. R. E. F., aka R. R. F., Appellant.
    A168881
    Court of Appeals of Oregon.
    Submitted February 1, 2019. August 28, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Mental Health Division for a period not to exceed 180 days. ORS 426.130. Appellant contends that the judgment should be reversed because the court failed to issue a citation to appellant as required by ORS 426.090. Appellant acknowledges that he did not preserve his assignment of error, but requests that we review and correct the error as plain error. ORAP 5.45(1). The state concedes that the trial court plainly erred and that the judgment of commitment should be reversed. We agree and accept the state's concession.

Under ORS 426.090, the court is required to issue a citation to a person alleged to have a mental illness that contains specific information, including the nature of the information filed concerning the person and the person's rights with respect to the proceeding. In this case, the court file does not contain a citation that complies with ORS 426.090, nor does it appear on the record that appellant was served with one. Instead, the file contains a certificate of service certifying that appellant was served with "Mental Health Hearing" the day before his mental commitment hearing. That appears to be a reference to a hearing notice issued and filed by the court, which solely provided the date, time, and location of appellant's commitment proceeding.

The court's failure to issue a citation in conformance with ORS 426.090 constitutes plain error. ORS 426.070 sets out the procedure for initiating commencement proceedings, and ORS 426.070(5)(a) requires the court to issue a citation under ORS 426.090 to cause the person to be brought before it for the commitment hearing. Here, the court plainly erred when it failed to comply with that procedure.

We also conclude that it is appropriate to exercise our discretion to correct the plain error in this case. Although appellant was advised of his rights at the start of the hearing, as required by ORS 426.100, that advisement did not include all of the information required by ORS 426.090 to appear in a certificate. Specifically, appellant was not advised, before the taking of evidence against him, of "the nature of the information filed concerning the person and the specific reasons the person is believed to be a person with mental illness." Thus, the error was not harmless. In addition, for the reasons stated in State v. M. L. R. , 256 Or. App. 566, 570-71, 303 P.3d 954 (2013) -viz. , the nature of civil commitment proceedings, the gravity of the violation, and the ends of justice-we conclude that it is appropriate to exercise our discretion to correct the error in this case.

Reversed.

      ORS 426.090 provides:
      "The judge shall issue a citation to the person alleged to have a mental illness stating the nature of the information filed concerning the person and the specific reasons the person is believed to be a person with mental illness. The citation shall further contain a notice of the time and place of the commitment hearing, the right to legal counsel, the right to have legal counsel appointed if the person is unable to afford legal counsel, and, if requested, to have legal counsel immediately appointed, the right to subpoena witnesses in behalf of the person to the hearing and other information as the court may direct. The citation shall be served upon the person by delivering a duly certified copy of the original thereof to the person in person prior to the hearing. The person shall have an opportunity to consult with legal counsel prior to being brought before the court."


author: JAMES, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Skyler Lee OLSON, Defendant-Appellant.
    A164642
    Court of Appeals of Oregon.
    Submitted February 13, 2019. July 10, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Skyler Lee Olson filed the supplemental brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

Defendant appeals from a judgment of conviction for one count of third-degree robbery, ORS 164.395. On appeal he assigns error to the trial court's denial of his request for substitution of counsel. As we explain, while there may be some uncertainty around the effect of the trial court's response in relation to defendant's request to fire his court-appointed lawyer, it did not err in the manner in which defendant has raised on appeal. Accordingly, we affirm.

The facts underlying defendant's conviction are not relevant to the issue on appeal. Instead, for our purposes, the relevant facts are entirely procedural, and undisputed. Following his conviction, defendant proceeded to sentencing represented by the same attorney who handled his trial. At sentencing, defendant's court-appointed counsel informed the court that defendant wanted to ask the court for a new attorney. Defendant said that he wanted to fire his attorney because, in part, "[appointed counsel] has misrepresented me and lied to me on certain occasions about certain information and evidence that has been presented at trial."

The trial court provided an opportunity for defendant to elaborate on that concern. Defendant then stated that he was innocent, that he had had an unfair trial, that he should have proceeded with a jury trial, that he requested a lineup identification, that he should have obtained a polygraph test, and that he hoped they apprehended the true perpetrator.

The court denied defendant's request, stating:

"[THE COURT]: So I'm just trying to process what your requests are. I think I've heard them.
"I'm not going to fire [appointed counsel], but you don't have to use him. He's going to stand there and sit with you. And he's at your disposal. You can not use him or use him."

Following that ruling by the court, defendant proceeded to sentencing. A review of the sentencing proceeding shows that counsel had essentially no participation. The prosecutor made a statement and sentence recommendation, and the victim made a statement. Defense counsel offered no evidence, called no witnesses, and made no argument. In fact, the only response on the record from defense counsel came to the court asking him "Are you still working?" to which counsel replied:

"[DEFENSE COUNSEL]: Yeah. Just-
"[THE COURT]: Do you want to make a statement on his client's behalf, or does he want you to?
"[DEFENSE COUNSEL]: I don't know if he does."

The court ultimately imposed a sentence of 26 months' incarceration and 24 months' post-prison supervision. This appeal followed. On appeal, defendant raises a single assignment of error, arguing that the trial court erred in denying his motion for substitution of counsel. Specifically, defendant argues on appeal that the trial court erred in failing to make a record showing that the trial court sufficiently "heard and considered" defendant's argument. Additionally, defendant argues that the complaints raised by defendant required, as a matter of law, substitution of counsel. The state responds that a trial court has discretion whether or not to conduct additional inquiry to properly understand the nature of the allegations underlying a substitution of counsel request and that, in this case, the trial court acted within its discretion in declining to inquire further. Finally, the state argues that defendant's claims did not require substitution of counsel and the trial court acted within its discretion in denying the motion. We agree with the state.

An indigent criminal defendant's right to court-appointed counsel is guaranteed by Article I, section 11, of the Oregon Constitution, and by the Sixth Amendment to the United States Constitution. Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed. 2d 799 (1963) ; Krummacher v. Gierloff , 290 Or. 867, 871-72, 627 P.2d 458 (1981). "A defendant's constitutional rights are to adequate and effective assistance of counsel; thus 'the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.' "

State v. Vierria , 278 Or. App. 656, 665, 379 P.3d 667 (2016) (quoting State v. Smith , 339 Or. 515, 526, 123 P.3d 261 (2005) ).

That right to counsel, however, does not equate to a right to court-appointed counsel of defendant's choosing. State v. Langley , 351 Or. 652, 663-64, 273 P.3d 901 (2012). A defendant moving to substitute court-appointed counsel "has no right to new appointed counsel in the absence of a legitimate complaint about existing counsel," and "a trial court ruling on a motion to substitute counsel will be reviewed for abuse of the trial court's discretion." Smith , 339 Or. at 523, 123 P.3d 261.

For the trial court, "determining the legitimacy of any complaint about appointed counsel is case-and fact-specific." Id . at 525, 123 P.3d 261. In furtherance of its consideration of the circumstances of the case, the trial court possesses discretion to determine the scope of the inquiry necessitated by a particular complaint. Id . at 529-30, 123 P.3d 261 (refusing to hold that the complaints in that case "require[d] the trial court independently to 'inquire' and to make a 'factual assessment' based on that inquiry regarding the adequacy of appointed counsel").

In this case, the trial court provided defendant an opportunity to elaborate on his concerns with counsel, to which defendant said:

"I feel like I've had an unfair trial. And you're the judge and you make the decision, but maybe I should have made better decisions, like going to jury trial and not before certain things in this case, like me not to get a lineup or-or a polygraph test."

Our review of this record shows that defendant's concerns were primarily regarding what he perceived to be unfairness at trial and what he viewed as an incorrect verdict, not the airing of concrete concerns about the present performance of counsel. In the context of this case, defendant's statements did not obligate the trial court to inquire further, and the trial court did not abuse its discretion in failing to do so. Similarly, the concerns expressed by defendant did not state a "legitimate complaint concerning [appointed counsel]" that might rise to the level of requiring substitution. State v. Langley , 314 Or. 247, 257, 839 P.2d 692 (1992), adh'd to on recons , 318 Or. 28, 861 P.2d 1012 (1993). Accordingly, the trial court was within its discretion to deny the motion for substitution.

We do note, however, that the phrasing of the trial court's ruling on defendant's motion to substitute counsel created uncertainty as to the role counsel was to play. On the one hand the trial court said, "I'm not going to fire [defense counsel]," indicating a denial of the motion. But, the court then immediately told defendant, "[Y]ou don't have to use him. He's going to stand there and sit there with you. And he's at your disposal. You can not use him or use him." From that statement, defendant might well have believed he now represented himself, with his former counsel acting merely as an attorney advisor. The uncertainty of the situation is underscored by the trial court itself when it asked counsel, "Are you still working?" On this record, it is not clear that anyone-defendant, defense counsel, nor the court itself-knew precisely what role defense counsel was then playing at sentencing.

The Article I, section 11, right to counsel may be waived. State v. Wagner , 305 Or. 115, 208, 752 P.2d 1136 (1988) (Linde, J., dissenting), vac'd on other grounds sub nom Wagner v. Oregon , 492 U.S. 914, 109 S. Ct. 3235, 106 L.Ed. 2d 583 (1989). However, we will not presume a valid waiver from a silent record. State v. Grenvik , 291 Or. 99, 102, 628 P.2d 1195 (1981) abrogated on other grounds by State v. Probst , 339 Or. 612, 124 P.3d 1237 (2005). "[A] trial court may accept a defendant's proffered waiver of counsel only if it finds that the defendant knows of his or her right to counsel and, if indigent, of his or her right to court-appointed counsel, and that the defendant intentionally and voluntarily relinquishes that right." State v. Meyrick , 313 Or. 125, 133, 831 P.2d 666 (1992).

"A colloquy on the record between the court and the defendant wherein the court, in some fashion, explains the risks of self-representation is the preferred means of assuring that the defendant understand the risks of self-representation. The more relevant information that a trial court provides to a defendant about the right to counsel and about the dangers and disadvantages of self-representation, the more likely it will be that a defendant's decision to waive counsel is an intentional relinquishment or abandonment of a known right or privilege and that the record will so demonstrate."

Id.

If the effect of the trial court's ruling in this case was to have defense counsel proceed as advisory counsel, it is indisputable that any such waiver of counsel occurred without a proper Meyrick colloquy. However, that issue has not been raised on appeal, and we therefore take no position on the matter.

Affirmed.

      Defendant raises additional pro se assignments of error that we reject without discussion.


author: ORTEGA, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Rashi William SAUNDERS, Defendant-Appellant.
    A165653
    Court of Appeals of Oregon.
    Submitted March 6, 2019. June 26, 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 Colm Moore, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
   ORTEGA, P. J.

Following a jury trial, defendant was convicted of one count of first-degree criminal mischief and one count of second-degree criminal mischief, sentenced to 20 months' incarceration, and ordered to pay $2,220.57 in restitution. We write to address defendant's fourth and fifth assignments of error, in which he challenges two terms in the judgment, and reject the remaining assignments without discussion.

Beginning with his fifth assignment, defendant challenges a term in the judgment providing that "[p]ayment of the fines, fees, assessments, and/or attorney's fees noted in this and any subsequent Money Award shall be scheduled by the clerk of the court pursuant to ORS 161.675." Defendant argues that ORS 161.675(1) prohibits the court from enforcing the monetary portion of the judgment during defendant's incarceration, given that the trial court did not find that defendant had assets with which to pay. In State v. Foos , 295 Or. App. 116, 119-20, 433 P.3d 493 (2018), we previously held that, without some evidence that the clerk is seeking to enforce the judgment, that term is not invalid on its face because it directs the court to act pursuant to ORS 161.675(1), and we assume the clerk will act in accordance with that statute.

Attempting to distinguish Foos , defendant argues that, here, there is evidence that the clerk failed to comply with ORS 161.675(1) because the trial court register reflects that the clerk sought to obtain the monetary obligations during defendant's incarceration. We disagree with defendant's view of the record. Defendant was sentenced on August 1, 2017. The official register reflects two relevant entries made on August 9, 2017. One entry states, "Local Restitution Project-Remove from Collections," and further instructs that "[post-prison supervision]-needs payment plan." The second entry on that date shows defendant's projected release date to be April 25, 2018. An entry on September 18, 2017, shows a "Judgment-Payment Schedule Assessment." On May 25, 2018, one month after defendant's projected release date, an entry shows that a letter was sent to defendant notifying him that his monetary obligations were delinquent. Thus, we find no support in the record for defendant's contention that the clerk attempted to collect the money owed while defendant was incarcerated. Rather, the fact that the letter of delinquency was sent one month after his projected release date does not support a logical inference that the clerk sought repayment while defendant was in custody. For that reason, this case is not distinguishable from, and is controlled by, Foos .

In his fourth assignment, defendant challenges the term in the judgment stating that the "court may increase the total amount owed by adding collection fees and other assessments *** without further notice to the defendant and without further court order." Defendant argues that, because ORS 161.675(1) prevents the court from enforcing the monetary obligation during defendant's incarceration, ORS 1.202(1) prohibits the court from imposing a collection fee, making that provision invalid. See ORS 1.202(1) (requiring the court to set a payment schedule if the court orders a fee to pay for the costs of collecting money owed by a defendant). Defendant's argument is premised on his contention that the clerk acted contrary to ORS 161.675(1) in seeking to enforce the monetary obligations in this case, an argument we have already rejected. Moreover, on its own, the term does not require the clerk to add a collection fee, nor does it direct the clerk to act contrary to any law or statute. Accordingly, we affirm.

Affirmed.

      We agree with the parties that defendant's assignments of error four and five are not subject to the rules of preservation because the error appeared for the first time in the judgment. State v. Foos , 295 Or. App. 116, 117, 433 P.3d 493 (2018).

      Although defendant was sentenced to 20 months of prison, he was made eligible for the reduction of his sentence pursuant to ORS 137.750 and based on the credit for the time he served in custody pending trial. The record indicates defendant spent a significant amount of time in custody pending trial.


author: TOOKEY, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Isaiah SMARTT, Defendant-Appellant.
    A165792
    Court of Appeals of Oregon.
    Submitted March 22, 2019. July 3, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Defendant appeals a judgment of conviction for assault in the third degree, ORS 163.165, which imposed a total of $84,046.58 in restitution against defendant. As a result of the underlying assault, the victim lost his right eye. In his sole assignment of error, defendant claims that the trial court erred in ordering restitution of $52,000 for the prosthetic eyes that the victim would need over the course of his lifetime because, according to defendant, the state failed to prove that that amount was reasonable. For the reasons that follow, we affirm.

The relevant facts are not in dispute. The case arises from a physical altercation between defendant and the victim. As a result of the altercation, the victim's right eye had to be removed and the victim was fitted with a custom prosthetic eye. The state charged defendant with, among other offenses, assault in the third degree, ORS 163.165. Defendant pleaded guilty to that offense, and the trial court dismissed the remaining charges.

The state sought restitution for the economic damages caused by defendant's assault and the trial court held a restitution hearing. During that hearing, defendant stipulated to restitution for the victim's hospital bills; emergency medical transportation; the prosthetic eye that the victim had already received, if the state could establish the cost of that prosthetic eye ; and various other medical expenses. Defendant, however, disputed $52,000 in restitution that the state was seeking on the victim's behalf to compensate the victim for the cost of prosthetic eyes over the course of the victim's lifetime.

The state, for its part, called the victim, who testified that (1) prosthetic eyes need to be replaced every "five or six years," (2) he did not know the cost of the prosthetic eye that he currently had, and (3) for the creation of the prosthetic eye that he currently had, he was required to "go [in] quite a few times," and measurements had to be taken so that molds could be made.

Additionally, the state called Renae Palmer, who works in victims' assistance at the Harney County District Attorney's Office. In that role, one of her duties is to "compile restitution figures for victims of crime." Palmer testified that, in this case, she "generate[d] a restitution figure" of $52,000 for the cost of prosthetic eyes over the course of the victim's lifetime. To arrive at that figure, Palmer contacted two providers of prosthetic eyes : (1) the "only place [the victim] would be able to get a prosthetic eye in Oregon" and (2) the out-of-state provider that had made the prosthetic eye that the victim had at the time of the restitution hearing. Each provider told Palmer that the cost of a prosthetic eye was $5,200. They also told Palmer that prosthetic eyes need to be replaced every "three to five years." Using the five-year figure, Palmer estimated that the victim, who was then 30 years old, would need to have 10 prosthetic eyes made as a result of the assault, resulting in a restitution figure of $52,000.

After the restitution hearing, the trial court issued a letter opinion imposing the disputed $52,000 in restitution. The letter opinion provides, in pertinent part:

"In this case ***, the victim[ ] was unable to identify the costs of prosthetic eyes. He did identify within a range of time how often his eye would need to be replaced. This meets the reasonable medical certainty standard of the need for prosthetic eyes.
"Renae Palmer, in her role as a victim advocate, testified she had contacted two different providers, noting there is only one in Oregon. Both were consistent in their costs for eyes at $5,200 per eye. This did not include other costs to polish the eye and ongoing check-ups.
"She also testified to a belief of a life expectancy for [the victim], a 30 year old male, of 80 years.
"This Court would rely, by judicial notice, on Social Security Actuarial Tables and find his life expectancy to be 77 years. Using the conservative estimate of 5 years for a new eye, the requested amount of restitution is medically reasonable."

On appeal, defendant contends that the "trial court erred when it ordered defendant to pay $52,000 in restitution for the cost of replacement prosthetic eyes over the course of the victim's lifetime" because the "state failed to prove that that amount was reasonable." Defendant makes two principal arguments to support that contention.

First, defendant argues the state has to prove that charges for "medical and other health care services" are "reasonable" for such charges to be recoverable as restitution and notes that the "submission of a medical bill, without more, is insufficient proof to establish" that such charges are reasonable. Defendant further argues that Palmer's testimony regarding the cost of prosthetic eyes "provided no more information than a medical bill alone would provide."

Second, defendant argues that, "in the absence of testimony from a professional familiar with the injury, treatment, or costs involved in providing a custom prosthetic eye, the trial court, sitting as factfinder, could not be presumed to know the reasonableness of a charge for optical prosthetics services or the reasonableness of periodically replacing a prosthetic eye."

The state contends, among other points, that the record contained legally sufficient evidence to support the restitution award-viz. , "testimony from a person who is experienced in estimating such costs, and who contacted two potential providers, both of whom were consistent in the prices that they quoted."

We "review orders of restitution for errors of law." State v. McClelland , 278 Or. App. 138, 141, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016). " 'We are bound by the trial court's factual findings if they are supported by any evidence in the record[.]' " Id. (quoting State v. Pumphrey , 266 Or. App. 729, 730, 338 P.3d 819 (2014), rev. den. , 357 Or. 112, 346 P.3d 1212 (2015) (brackets in McClelland )).

"The process by which the state may seek to recover restitution against a criminal defendant and on behalf of a victim is set forth by statute." Id. at 141, 372 P.3d 614. ORS 137.106(1)(a) provides, in relevant part:

"When a person is convicted of a crime * * * that has resulted in economic damages, the district attorney shall investigate and present to the court * * * evidence of the nature and amount of the damages. * * * If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court."

Importantly, to be recoverable as restitution, medical expenses must be "reasonable in amount and necessarily incurred." State v. Herfurth , 283 Or. App. 149, 157, 388 P.3d 1104 (2016), rev. den. , 361 Or. 350, 393 P.3d 1176 (2017) (so noting with respect to economic damages recoverable as restitution generally); State v. Campbell , 296 Or. App. 22, 27, 438 P.3d 448 (2019) (noting "the state has to prove that the cost of [medical expenses are] reasonable before restitution can be awarded," and "recoverable damages are based on the value of necessary services" (internal quotation marks and emphasis omitted)); see also ORS 31.710(2) (defining "[e]conomic damages" as including "reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services"). The "submission of a hospital bill, without more, is insufficient proof for recovery of 'reasonable' hospital or medical services. Some additional testimony or evidence is required to support the reasonableness of the bill for the hospital or medical services." McClelland , 278 Or. App. at 144, 372 P.3d 614.

Recently, in Campbell , in the context of a request for restitution, we explained that the "market rate is a reasonable amount for a victim to recover for medical expenses." 296 Or. App. at 30, 438 P.3d 448. The "market rate is the value ascribed to the services in a given market, and the market rate is the burden a victim bears to receive care in that time and place." Id . at 30-31, 438 P.3d 448. Consequently, in a restitution proceeding, "the state can demonstrate the reasonable value of medical expenses by offering evidence that the medical expenses reflect the usual and customary rate for those services in the market wherein they occur." Id. at 31, 438 P.3d 448.

Applying those principals in the case at hand, we conclude that the record contained legally sufficient evidence for the trial court to determine that $52,000 in restitution constituted necessary and reasonable medical expenses in this case.

First, regarding the need for the victim to replace his prosthetic eye every five years, the state presented evidence, via testimony from the victim, that the victim's prosthetic eye would need to be replaced every five to six years. The state also presented evidence, via testimony from Palmer, who had spoken with two providers of prosthetic eyes, that prosthetic eyes need to be replaced every three to five years. That evidence was legally sufficient to permit the trial court to determine that it would be necessary for the victim to have his prosthetic eye replaced every five years.

Second, regarding the cost to fabricate a custom prosthetic eye, in this case, the state presented evidence that the only prosthetic eye provider in Oregon charged $5,200 for that service. The state also presented evidence that that same price was charged by an out-of-state provider of prosthetic eyes. That evidence was legally sufficient to permit the trial court to determine that $5,200 reflected the usual and customary rate for the fabrication of a custom prosthetic eye and, consequently, that $5,200 is a reasonable charge to have a custom prosthetic eye made. See Campbell , 296 Or. App. at 39, 438 P.3d 448 (the "state can establish that charges for medical services are reasonable by providing evidence that the charges reflect the usual and customary rates for those services in the market").

Defendant's arguments to the contrary are not persuasive. First, defendant contends that Palmer's testimony in this case "provided no more information than a medical bill alone would provide." Palmer received a quote of $5,200 per prosthetic eye from two different providers of prosthetic eyes, including the sole provider in Oregon. That is evidence with "more information than a medical bill alone would provide," and is sufficient to support the trial court's determination that $5,200 is a reasonable charge to have a custom prosthetic eye made.

Second, defendant argues that "in the absence of testimony from a professional familiar with the injury, treatment, or costs involved in providing a custom prosthetic eye, the trial court, sitting as factfinder, could not be presumed to know the reasonableness of a charge for optical prosthetics services or the reasonableness of periodically replacing a prosthetic eye." "Although we have acknowledged that a plaintiff generally presents evidence of the reasonableness and necessity of medical expenses through testimony of physicians and other medical professionals familiar with the injury, treatment, and costs involved, we have not held that to be the only permissible method." Campbell , 296 Or. App. at 34, 438 P.3d 448 (internal quotation marks, citation, and brackets omitted). As noted above, Palmer's testimony, as well as that of the victim, provided the trial court with sufficient evidence to determine that it would be necessary for the victim to have his prosthetic eye replaced every five years. In addition, as noted above, evidence that two providers of prosthetic eyes-including the sole provider in Oregon-charge $5,200 to fabricate a custom prosthetic eye, was legally sufficient to permit the trial court to determine that $5,200 is a reasonable charge to have a custom prosthetic eye made.

In sum, for the reasons stated above, we conclude that the trial court did not err in imposing the challenged $52,000 in restitution.

Affirmed.


author: PER CURIAM Aoyagi, J., concurring. AOYAGI, J., concurring.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Austin Ray HALTOM, Defendant-Appellant.
    A165666
    Court of Appeals of Oregon.
    Argued and submitted April 30, 2019. July 17, 2019
    Neil F. Byl, 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.
    Michael A. Casper, Assistant Attorney General, Salem, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for second-degree sexual abuse, ORS 163.425, asserting that the trial court erred in instructing the jury that it could convict him of that crime if it found that he acted recklessly or negligently with respect to the victim's lack of consent. Defendant argues that, for purposes of second-degree sexual abuse, the victim's lack of consent is "a conduct element," and, therefore, in order to convict, the jury was required to find that he knew that the victim did not consent. See State v. Simonov , 358 Or. 531, 539-40, 368 P.3d 11 (2016) ("Unless otherwise indicated for a particular offense, 'conduct' elements require proof of an intentional or knowing mental state, 'result' elements require proof of an intentional, reckless, or criminally negligent mental state, and 'circumstance' elements require proof of a knowing, reckless, or criminally negligent mental state."). In defendant's view, the Supreme Court's analysis in Simonov (relating to the crime of unauthorized use of a vehicle) supports that outcome.

The state responds, and we agree, that our decision in State v. Wier , 260 Or. App. 341, 317 P.3d 330 (2013), controls the outcome in this case. In Wier , we considered whether, for purposes of third-degree sexual abuse, the state was required to prove a knowing mental state with respect to the victim's lack of consent, or whether "recklessness or criminal negligence would suffice." Id. at 352, 317 P.3d 330. We concluded that the victim's lack of consent "is a circumstance element of the crime" and the "culpable mental states of knowledge, recklessness, and criminal negligence all may apply to a circumstance." Id. Thus, to prove that a defendant committed third-degree sexual abuse, "the statute requires the state to prove only that a defendant acted, at a minimum, with criminal negligence with respect to lack of consent." Id. at 353, 317 P.3d 330. Wier establishes that the victim's lack of consent is a circumstance element that the state can prove using a reckless or criminally negligent mental state.

Defendant suggests that Wier cannot survive Simonov . We are not persuaded. In determining whether one of our cases remains "good law" in light of a subsequent Supreme Court decision, we analyze (1) whether the Supreme Court case overrules our prior holding and, (2) if it does not, whether the Supreme Court's analysis demonstrates that our prior decision is " 'plainly wrong' such that we should overrule it ourselves." State v. McKnight , 293 Or. App. 274, 278, 426 P.3d 669, rev. den. , 363 Or. 817, 432 P.3d 1093 (2018). In our view, Simonov -which addressed a statute with a different structure and purpose than the sexual abuse statutes-does not establish that Wier is plainly wrong. Cf. Simonov , 358 Or. at 547 n. 5, 368 P.3d 11 (observing that, in the third-degree sexual abuse statute, the "proscribed act-subjecting another person to sexual contact-is set out in a separate paragraph from the element that the victim does not consent," and noting our decision in Wier that criminal negligence will suffice to prove the "does not consent" element).

Affirmed.

Aoyagi, J., concurring.

AOYAGI, J., concurring.

Today we hold that lack of consent is a circumstance element of the crime of second-degree sexual abuse, such that a person may be convicted of the offense if he or she is criminally negligent with respect to the other person's consent. I agree with that disposition because it is consistent with State v. Wier , 260 Or. App. 341, 352, 317 P.3d 330 (2013), in which we held the same with respect to the lack-of-consent element of third-degree sexual abuse. I write separately, however, because I believe that Wier was incorrectly decided and that, by extension, this case is incorrectly decided. At the same time, "we will overrule a case only when it is plainly wrong, a rigorous standard grounded in presumptive fidelity to stare decisis ." State v. B. A. F. , 290 Or. App. 1, 3, 414 P.3d 486 (2018) (internal quotation marks omitted). I am not prepared to say that Wier is "plainly wrong" under that rigorous standard. Accordingly, I view the issue as one for the Supreme Court to address, and, as such, concur.

A person commits the crime of second-degree sexual abuse when the person subjects another person to sexual intercourse or certain acts of penetration "and the victim does not consent thereto." ORS 163.425(1)(a). A person commits the crime of third-degree sexual abuse when the person subjects another person to sexual contact and "[t]he victim does not consent to the sexual contact" or "is incapable of consent" due to age, ORS 163.415(1)(a), or when the person intentionally propels a dangerous substance at a victim for purposes of sexual arousal or gratification "without the consent of the victim," ORS 163.415(1)(b). In Wier , we held that "the fact that '[t]he victim does not consent to the sexual contact' is a circumstance element of the crime" of third-degree sexual abuse. 260 Or. App. at 352, 317 P.3d 330 (quoting ORS 163.415(1)(a) ). We hold the same today with respect to second-degree sexual abuse.

The Supreme Court recently discussed the difference between conduct elements and circumstance elements in State v. Simonov , 358 Or. 531, 540-41, 368 P.3d 11 (2016). The defendant in that case was charged with unauthorized use of a vehicle (UUV) under ORS 164.135(1)(a), which is committed when a person "takes, operates, exercises control over, rides in or otherwise uses another's vehicle, boat or aircraft without consent of the owner ." Simonov , 358 Or. at 534, 546, 368 P.3d 11 (quoting ORS 164.135(1)(a) ; emphasis added). The defendant asked the trial court to instruct the jury that the state had to prove that he knew that the owner did not consent to his use of the vehicle in order to convict him of UUV. The trial court denied the instruction and instead instructed the jury that it could convict defendant if he was criminally negligent on the issue of consent. Simonov , 358 Or. at 533, 368 P.3d 11.

The Supreme Court reversed the trial court, agreeing with defendant (and us) that knowledge was the minimum culpable mental state for the lack-of-consent element of UUV. Simonov , 358 Or. at 549, 368 P.3d 11. The court began its analysis by noting that, when an element of an offense requires a culpable mental state (as most do), but the statute creating the offense does not specify the mental state, the required minimum mental state depends on the nature of the element. Id. at 538-39, 368 P.3d 11. The minimum culpable mental state for "conduct" elements is knowledge, while the minimum culpable mental state for "result" and "circumstance" elements is criminal negligence. Id . at 539-40, 368 P.3d 11. As clarified in Simonov , "conduct elements are those that describe the nature or essential character of the defendant's act or omission." Id . at 541, 368 P.3d 11 (emphasis added). "[W]hen an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element." Id . at 546, 368 P.3d 11. By contrast, "circumstance" elements are those that describe "an accessory fact that accompanies the defendant's conduct." Id. The court recognized in Simonov that "the line between conduct and other elements is not always easy to draw" but reiterated that it "nevertheless is a principled [line]." Id . at 544, 368 P.3d 11. Ultimately, "[w]hether a particular element-including lack of permission or consent-constitutes part of the defendant's conduct or is a circumstance depends on a careful examination, using well-established statutory interpretation principles, of the role of the element in the offense and its relationship to the other elements." Id .

Applying those principles to the UUV statute, the court rejected the state's argument that the owner's lack of consent was a circumstance element, i.e. , an " 'accessory fact' that accompanie[d] the offender's physical act." Id . at 536, 548, 368 P.3d 11. Instead, it agreed with the defendant that the owner's lack of consent was "part of the nature or essential character of the act proscribed" by the UUV statute. Id . at 546-47, 368 P.3d 11. The court explained how the statutory text supported its conclusion. See id . at 547, 368 P.3d 11. It also pointed out that the state's interpretation would subject a vehicle passenger to criminal liability for a felony if the person acted with "naïve trust" that met the standard for criminal negligence; "[t]he severity of that consequence suggests that the legislature did not contemplate that mere criminal negligence would suffice to establish criminal liability for UUV." Id . at 548, 368 P.3d 11. Finally, the court concluded, "That the crime of UUV criminalizes a particular form of conduct-unauthorized use-borders on the axiomatic." Id . "The nature of joyriding is the temporary use of a vehicle without permission. Because riding without permission is part of the essential character of the proscribed act, to be convicted of UUV, a person must know that the vehicle is being used without the owner's consent." Id .

In my view, under the court's analysis in Simonov , lack of consent is a conduct element for sexual abuse. That is, it is part of the nature or essential character of the proscribed act. Analogizing to the court's statement about UUV in Simonov , that the crime of sexual abuse criminalizes a particular form of conduct-nonconsensual sexual contact-borders on the axiomatic. To say otherwise, and to treat the other person's lack of consent as merely an attendant circumstance, is to say that the essential character of the prohibited act is having sexual contact with another person. But that is an entirely lawful act. It is only the lack of consent that makes it unlawful. The essence of the crime of sexual abuse is not sexual contact but, rather, nonconsensual sexual contact.

In Simonov , the court used the theft statutes to demonstrate "the role of circumstance elements in a criminal offense." Id . at 541, 368 P.3d 11. As the court explained, "[t]he prohibited conduct for theft in any degree is the taking of another's property with the intent to deprive the owner of it ." Id . (emphasis added). The degree of theft depends on the value of the property: first-degree theft involves property with a value of $1,000 or more, second-degree theft involves property with a value of less than $1,000 but at least $100, and third-degree theft involves property with a value less than $100. Id . at 541-42, 368 P.3d 11 (citing ORS 164.055, ORS 164.045, and ORS 164.043 ). However, "[t]he specific value of the stolen property does not change the essential character of the prohibited conduct." Id. at 542, 368 P.3d 11. The essential character of the crime of theft is taking property with the intent to deprive the owner of it, while the value of the stolen property is simply a circumstance that affects the degree of the theft. See id . The value of the property is an accessory fact that accompanies, rather than modifies, the defendant's conduct. Id .

The lack-of-consent element of sexual abuse is analogous to the intent-to-deprive element of theft, not the value of the stolen property. Engaging in sexual contact without the other person's consent is essential to the crime of sexual abuse in the same way that unauthorized use of a vehicle is essential to the crime of UUV and that taking property with the intent to deprive the owner of it is essential to the crime of theft. The other person's lack of consent to sexual contact is not an "accessory fact" that merely "accompanies" the offender's conduct. It fundamentally modifies the person's conduct, changing it from a legal act to an illegal act. Lack of consent therefore is a conduct element, not a circumstance element, of sexual abuse.

That lack of consent is essential to the prohibited act is the most important reason that it is a conduct element, but there are also additional considerations that support that conclusion. One is that first-degree sexual abuse, ORS 163.427, requires a minimum culpable mental state of knowledge for the element of forcible compulsion, i.e. , the use of force to overcome lack of consent. Wier , 260 Or. App. at 350, 317 P.3d 330. Similar to the three theft statutes, all three sexual abuse statutes prohibit a certain type of conduct-nonconsensual sexual contact-with the degree of the offense depending on the specific circumstances. Because lack of consent is equally essential to the offense regardless of the degree, the minimum culpable mental state should be the same with respect to the lack-of-consent element for all three statutes.

Another additional consideration is that second-degree sexual abuse, like UUV, is a felony. See ORS 163.425(2). In Simonov , the court cited the severity of the consequences of a felony conviction as suggestive "that the legislature did not contemplate that mere criminal negligence would suffice to establish criminal liability for UUV." 358 Or. at 548, 368 P.3d 11 ; see also id. at 540, 368 P.3d 11 (the minimum culpable mental state for "circumstance" elements is criminal negligence). Indeed, not only is second-degree sexual abuse a felony, but it is a felony that can trigger other extremely serious consequences unique to felony sex crimes. The presumptive sentence for a felony sex crime is life imprisonment without the possibility of release or parole , if the defendant has been sentenced twice before for felony sex crimes. ORS 137.719(1). And even a single conviction for sexual abuse requires the person to register as a sex offender-see ORS 163A.010(2) (requiring registration of persons convicted of a "sex crime"); ORS 163A.005(5) (defining "[s]ex crime" to include "[s]exual abuse in any degree")-and subjects the person to further criminal liability for failure to comply with the registration requirements, ORS 163A.040(1).

Finally, I note that the state argues that the sexual abuse statutes are distinguishable from the UUV statute (as interpreted in Simonov ) due to grammatical differences between the statutes. A person commits UUV when the person uses another's vehicle "without consent of the owner." ORS 164.135(1). A person commits second-degree sexual abuse when the person subjects another person to sexual intercourse "and the victim does not consent thereto." ORS 163.425(1)(a). A person commits third-degree sexual abuse when the person subjects another person to sexual contact and "[t]he victim does not consent to the sexual contact" or cannot consent due to age, ORS 163.415(1)(a), or when the person propels a dangerous substance at another person for sexual purposes "without the consent of the victim," ORS 163.415(1)(b).

Courts are necessarily sensitive to wording, phrasing, grammar, and syntax when construing statutes, because text is paramount in statutory construction, and because those nuances are sometimes our only window into the legislative intent. And, in Simonov , 358 Or. at 546-47, 368 P.3d 11, the Supreme Court specifically recognized that the legislature's linguistic and grammatical choices are relevant in determining whether lack of consent is a conduct element or a circumstance element of an offense. It does not follow, however, that we are to disregard the essential character of a criminal act so as to maintain a bright line between slightly different grammatical formulations. In seeking to distinguish the sexual abuse statutes from the UUV statute, the state, in my view, seeks to put form over substance. The minor differences in language between the sexual abuse and UUV statutes are, in this instance, immaterial.

In sum, because lack of consent is part of the essential character of the proscribed act of sexual abuse, as well as for the additional reasons discussed, I believe that lack of consent is a conduct element of sexual abuse in any degree and that Weir was incorrectly decided. At the same time, given our "presumptive fidelity to stare decisis " and the rigorous standard to overrule existing case law, B. A. F. , 290 Or. App. at 3, 414 P.3d 486, I am unprepared to say that Weir is plainly wrong and view the matter as one for the Supreme Court. Accordingly, I concur in the disposition.

      In a supplemental brief, defendant asserts that the trial court erred when it instructed the jury that it could reach a nonunanimous verdict. We reject that supplemental assignment of error on the merits without discussion.

      Defendant points out that the jury acquitted him of first-degree rape.

      We did not explain in Wier how we came to conclude that lack of consent is a circumstance element of the crime of third-degree sexual abuse. The only hint to our reasoning is a "see" cite to two items of legislative history. See Wier , 260 Or. App. at 352, 317 P.3d 330 (citing I Model Penal Code and Commentaries (Official Draft and Revised Comments 1985) § 2.02 comment at 231-32; and Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, Dec. 18, 1968, Tape 29, Side 1 (statement of Courtney Arthur)). Having reviewed those two items, I disagree that they support the conclusion in Wier , let alone compel it. See also State v. Rainoldi , 236 Or. App. 129, 142-45, 235 P.3d 710 (2010), rev'd on other grounds , 351 Or. 486, 268 P.3d 568 (2011) (explaining that confusion about the Model Penal Code's approach to separating conduct, attendant circumstances, and end result-as evident in the legislative history-led the Oregon drafters to use statutory language different from the Model Penal Code's language).

      Moreover, notably, there are two paragraphs in the third-degree sexual abuse statute, one of which uses the same phrasing as the second-degree sexual abuse statute, and the other of which uses the same phrasing as the UUV statute, regarding lack of consent. See ORS 163.415(1)(a)(A) (it is third-degree sexual abuse when a person subjects another person to sexual contact and "[t]he victim does not consent to the sexual contact"); ORS 163.415(1)(b) (it is third-degree sexual abuse when a person propels a dangerous substance at a victim for sexual purposes "without the consent of the victim").


text:
    STATE of Oregon, Plaintiff-Respondent, v. Isaiah K. PAYNE, aka Isaiah Khalil, Defendant-Appellant.
    A166061
    Court of Appeals of Oregon.
    Argued and submitted May 8, 2019. July 3, 2019
    Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.
   LANDAU, S. J.

Defendant appeals a judgment of conviction for third-degree sexual abuse. ORS 163.415. He advances a number of assignments of error, all but one of which we reject without discussion. We write to address only his contention that the trial court erred in failing to deliver a witness-false-in-part jury instruction. We conclude that, even assuming for the sake of argument that the trial court erred in failing to deliver the instruction, any such error was harmless. We therefore affirm.

At trial, the victim testified that she and defendant knew each other socially. She said that, one evening after chatting outside, they agreed to continue their conversation in defendant's car. She testified that, once in the car, defendant began propositioning her sexually and ultimately exposed himself, grabbed her hand, placed it on his erect penis, and caused her to masturbate him. She said that she was afraid of defendant and did not get out of the car because she knew defendant to carry a firearm.

The victim explained that she later reported the incident to the police. The police report stated that she had told Officer Buck that she did not get out of the car because, "if I ran, a strong muscular black man could catch me." At trial, however, the victim said that, "I did not say it like that. I said a man with his size and structure-his stature, if I was to just lean over, just have this much space and have to hop down, how could he not grab me too. I'm pretty sure he's bigger than me, and he can run faster than me." She said that she did not remember saying anything about defendant being black.

On the basis of the victim's testimony, defendant requested the uniform witness-false-in-part instruction, which provides:

"Sometimes a witness may give incorrect or even inconsistent testimony. This does not necessarily constitute lying on the part of the witness. The witness's testimony may be an honest mistake or confusion. The witness may simply forget matters, or his or her memory of an event may contain honest inconsistencies or contradictions. Also, different witnesses may observe or recount the same event differently.
"However, if you find that a witness has intentionally lied in part of his or her testimony, you may, but are not required to, distrust other portions of that witness's testimony.
"As jurors, you have the sole responsibility to determine which testimony or portions of testimony you will or will not rely on in reaching your verdict."

Defendant argued that, "there's been conflicting testimony that rises to-above just inconsistency. I asked [the victim] if she said the words 'strong black man,' she said, 'no, I did not say that. Those are not my words.' " The trial court declined to deliver the instruction, concluding that defendant had "made an insufficient showing to trigger the giving of that instruction."

During closing argument, defendant repeatedly challenged the victim's credibility. He argued that she "has been known to lie." He noted that, with respect to her report to the police,

"[s]he refused to admit that she had made the statements to the police officer. Her statement that she was sure a big muscular black man could catch her. More changing in stories, more malleable facts. The story sounds like something she made up after the fact to what she had done as an excuse as to why she cheated on her boyfriend."

The jury returned a verdict of guilty.

On appeal, defendant argues that the trial court erred in failing to deliver the requested witness-false-in-part instruction. The state argues that the trial court did not abuse its discretion in failing to deliver the instruction and, in any event, any error in failing to deliver it was harmless. Defendant rejoins that the error was not harmless, because the failure to deliver the instruction "deprived defendant of an argument that [the victim's] falsehoods on the stand rendered her entire testimony not credible."

As we noted at the outset, we need not determine whether the trial court erred in failing to deliver the requested instruction because, even if it did, the error was harmless. We are required to affirm the trial court in spite of error if "there is little likelihood that the error affected the verdict." State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). There is, in this case, little likelihood that the failure to deliver the uniform witness-false-in-part instruction affected the verdict, given the nature of the witness-false-in-part instruction itself and the record of the trial.

The uniform witness-false-in-part instruction is derived from ORS 10.095(3), which states that, "on all proper occasions," the jury is to be instructed "[t]hat a witness false in one part of the testimony of the witness may be distrusted in others." The instruction actually "makes no demand on the jury; it simply describes what the jury is empowered to do." State v. Long , 106 Or. App. 389, 395, 807 P.2d 815 (1991), adh'd to as modified on recons , 107 Or. App. 284, 812 P.2d 831 (1991), overruled on other grounds by City of Portland v. Jackson , 111 Or. App. 233, 826 P.2d 37 (1992), rev'd , 316 Or. 143, 850 P.2d 1093 (1993). In that regard, the instruction has long been subject to criticism, given that it not only fails to require anything of the jury but also merely restates common sense and can consist of an improper comment on the evidence. As Wigmore put it:

"It may be said, once for all, that the maxim [false in one, false in all] is in itself worthless; first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words."

John Henry Wigmore, 3 A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 1009, 675 (3d ed. 1940); see also Beavers v. Boykin , 273 Ala. 413, 415, 142 So. 2d 10 (1962) ("The prevailing attitude of the courts toward such instructions is one of tolerance and sufferance. The instructions labor under faint praise and are generally regarded as of little assistance to the juries." (Internal quotation marks omitted.)); Comm v. Parente , 184 Pa. Super 125, 132, 133 A.2d 561 (1957), aff'd , 392 Pa. 48, 139 A.2d 924 (1958) ("The maxim has been limited, qualified, criticized, and, in a sense, rejected by both authors and courts.").

Oregon courts have expressed similar concerns. As this court explained in State v. Walker , 291 Or. App. 188, 193, 419 P.3d 794 (2018), although the Court of Appeals has not expressly said that the witness-false-in-part instruction is disfavored, "it is certainly an instruction to be approached with caution." The Supreme Court likewise has observed that the witness-false-in-part instruction has the potential to lead to "mischief in the jury room," citing Wigmore's criticism. Ireland v. Mitchell , 226 Or. 286, 293, 359 P.2d 894 (1961).

Of particular relevance to this case is the criticism that the instruction does not require anything of the jury; rather, it tells the jury what it is already free to do. Even without the instruction, juries remain free to draw inferences from the credibility or lack of credibility of witnesses. And even without the instruction, parties remain free to make arguments about the point.

That certainly was so in this case. Defendant openly challenged the victim's credibility generally in closing arguments, observing that she "has been known to lie" and that she "made up after the fact" her version of the events at trial. And he specifically targeted the inconsistency between her testimony in court and the report to the police, arguing that she "refused to admit that she had made the statements to the police officer" that a "big muscular black man could catch her." Defendant's argument that the trial court's failure to deliver the instruction deprived him of the argument that the victim's testimony was not credible is simply not borne out by the record.

We conclude that, even assuming that the trial court erred in failing to deliver the requested uniform witness-false-in-part jury instruction, such error was harmless.

Affirmed.


author: HADLOCK, P. J.

text:
    In the MATTER OF G. I. R., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. R., Appellant.
    A169536
    Court of Appeals of Oregon.
    Argued and submitted May 9, 2019. June 12, 2019
    Shannon Flowers, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Inge D. Wells, Eugene, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Mother appeals a judgment in which the juvenile court asserted dependency jurisdiction over her child, arguing that the court erred in determining that it had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). As explained below, we conclude that the juvenile court erred when it ruled that it had "temporary emergency jurisdiction" under the UCCJEA and that, in the circumstances present here, it would be inappropriate for us to determine in the first instance whether the court had jurisdiction under another UCCJEA provision. Accordingly, we vacate the judgment and remand for further proceedings.

To provide background for the discussion that follows, we briefly summarize pertinent provisions of the UCCJEA, which governs subject matter jurisdiction in juvenile dependency proceedings. See ORS 419B.803(2) ("Juvenile court jurisdiction is subject to ORS 109.701 to ORS 109.834"); ORS 109.701 (" ORS 109.701 to 109.834 may be cited as the [UCCJEA]"). The general jurisdiction provision of the UCCJEA describes several circumstances in which an Oregon court has subject matter jurisdiction in a dependency proceeding, only some of which are potentially at issue here. One of those circumstances exists when Oregon is the child's "home state." ORS 109.741(1)(a). The "home state" is defined in ORS 109.704(7) as follows:

" 'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. *** Any temporary absence of any of the mentioned persons is part of the period."

A second circumstance in which jurisdiction exists in Oregon is when no court of another state either is the child's "home state" or has jurisdiction for certain other reasons. ORS 109.741(1)(d).

In addition, an Oregon court may exercise "temporary emergency jurisdiction" under the UCCJEA when "it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." ORS 109.751(1). Temporary emergency jurisdiction is an "extraordinary jurisdiction reserved for extraordinary circumstances." Dept. of Human Services v. T. F. , 292 Or. App. 356, 360, 425 P.3d 480 (2018) (quoting Uniform Child Custody Jurisdiction and Enforcement Act § 204 comment, 9 ULA 649, 677 (1997)).

The pertinent facts are undisputed for purposes of the UCCJEA analysis except for the contested issues that we describe below. Child entered shelter care in Oregon in early September 2018, when she was three years old. A Department of Human Services (DHS) caseworker filed a dependency petition the next day, alleging that child was within the juvenile court's dependency jurisdiction based on conditions and circumstances including mother's substance abuse, criminal activities, and neglect of child, as well as father's incarceration and unavailability as a custodial resource. A shelter care order was entered and counsel appointed for child and the parents. The record indicates that child's grandparents participated by telephone at the shelter hearing.

Several days later, child's maternal grandparents sought an emergency hearing in the Oregon juvenile court "for the return of our granddaughter, [child]." They asserted that mother had signed over "legal custody/guardianship" of child in August 2017. In support of that contention, they attached a handwritten document dated August 16, 2017, signed by mother and notarized in New York, in which mother purported to "give guardianship/custody to the grandparents of [child] * * * until [mother was] able to take custody/guardianship back * * *." At around the same time, maternal grandparents petitioned a New York court to enforce the August 2017 "custody/guardianship" document; in that petition, grandparents asserted that Oregon is not child's home state.

At some point (the timing is not reflected in the record), mother moved to dismiss the dependency case, asserting that the Oregon court lacked subject matter jurisdiction under the UCCJEA. A hearing was held in October 2018 on that motion, and maternal grandparents and father all participated by telephone.

Mother explained at the hearing that she had brought child to Oregon in early April 2018. Before then, child had lived with maternal grandparents for about nine months at their home in Virginia; before that, child had lived with mother in Florida. Mother testified that she had brought child to Oregon only for a temporary visit, to see whether she and child eventually would move to this state. However, when mother and child had been in Oregon for a few weeks, an incident occurred in which child came to DHS's attention. Knowing that DHS was performing an "assessment investigation" regarding child and her circumstances, mother left for California in early June, taking child with her. At some point after that, child came to the attention of California authorities and was taken from mother in early September 2018. Child was then returned to Oregon and put in DHS's care.

Mother testified at the October 2018 hearing on her motion to dismiss that, if the Oregon dependency case were dismissed, maternal grandparents would promptly fly to Oregon to retrieve child. Mother then would enter treatment while child stayed with mother's family. When asked if she had any intention of revoking her delegation of custody to maternal grandparents, mother responded "as soon as I am able to-I'm able to support my child, of course." She also asserted that she believed that the forms she had signed, purporting to delegate custody to grandparents in August 2017, were valid for six months.

Maternal grandfather also testified at the hearing. He said that the understanding in April 2018 had been that mother would take child on vacation for a few weeks and then would return child to grandparents' care in Virginia. He said that, if the case were dismissed, he and his wife would come to Oregon to retrieve child.

At the close of the hearing, mother argued that there was no basis for emergency jurisdiction under the UCCJEA because child would not be at risk of harm if the case were dismissed, as she then would return to grandparents' care. Mother also asserted that child's home state was Virginia, but she did not explain why. Father agreed with mother that Virginia was the home state, observing that child had lived there with her grandparents.

In response, DHS did not argue for temporary emergency jurisdiction, but argued that Oregon had jurisdiction under the UCCJEA "because no Court of any other state would have jurisdiction" under the uniform act. The court and the state's lawyer listed states that would not be child's home state (New York, Oregon, and Florida), and the court then said, "Maybe Virginia." The state's lawyer responded:

"Perhaps, Virginia but *** I know mom didn't sign-mom had intent to *** return to Virginia herself as a caregiver and you know there wasn't *** the move to Southern California to get into treatment was-really showed her intent that you know she wasn't really in a hurry to get back to Virginia but she-you know I think for a 90 day period at least she was going to be with the child in Southern California."

In the end, the state took the position that Virginia was not the child's home state.

The juvenile court ruled that it had temporary emergency jurisdiction under the circumstances, focusing on its concern that maternal grandparents would not necessarily be able to keep child safe, particularly if mother decided to-again-remove child from their care: "I am concerned about grandparents while I know they have every best intention at heart but they demonstrated an inability to protect [child] by simply letting her come out here and then they couldn't get her back." In response to assertions by grandfather that mother was "not going to get custody of her kid" if child was returned to grandparents in Virginia, the court also noted that-if the case was in Oregon-the court "would make [grandparents] establish that [they] have a custodial relationship first before [the court] would let [them] do any of that." The court remarked further that it did not know Virginia law, but would not be persuaded that child was safe "absent [a] custody order in Virginia that allows [grandparents] to do that," apparently referring to grandfather's suggestion that he would not allow mother to remove child from grandparents' care.

Based on its determination that it had temporary emergency jurisdiction under the UCCJEA, the juvenile court denied mother's motion to dismiss. The same day that the court entered its written order denying the motion, grandparents notified the Oregon court that they had filed a petition for a writ of mandamus in the Supreme Court of Virginia, seeking return of child to their care. Grandparents asserted that Virginia is child's home state because grandparents have a power of attorney, are psychological parents of child, and have physical and legal custody rights. The petition to the Virginia Supreme Court seeks "emergency full custody rights of [child]." The record does not reflect what steps, if any, the Virginia court may have taken on that petition.

DHS filed an amended dependency petition on October 31, 2018. At the subsequent dependency hearing, mother renewed her motion to dismiss for lack of subject matter jurisdiction under the UCCJEA. The juvenile court again denied the dismissal motion. In speaking with grandparents by phone at the hearing, the court noted that it did not "see that you've established a third party psychological parents in a custody matter in Virginia." The court stated that it was ready to facilitate child's return to family members on the east coast "as soon as I find out someone's a legal guardian or has custody and can protect." The court subsequently took dependency jurisdiction over child. Mother appeals the resulting judgment.

On appeal, mother first argues that the juvenile court erred when it determined that it had temporary emergency jurisdiction under the UCCJEA because the record includes no evidence that child would be at immediate risk of harm if she was returned to mother's care. In response, DHS acknowledges that the record does not support temporary emergency jurisdiction.

Mother also argues that Virginia-not Oregon-had UCCJEA jurisdiction because Oregon was not child's home state and Virginia has jurisdiction "because [child] lived there with grandparents, who cared for her and acted as her parents" for about nine months, ending in mid-April 2018, five months before DHS filed the dependency petition. DHS disagrees. It argues on appeal, as it did below, that the Oregon court had UCCJEA jurisdiction under ORS 109.741(1)(d) because no other state had jurisdiction. In particular, DHS contends that Virginia was not child's home state.

We begin by addressing the basis on which the juvenile court ruled-its determination that it had temporary emergency jurisdiction under ORS 109.751. We agree with the parties that the juvenile court erred in that determination; our review of the record reveals no basis for a finding that child would be "at immediate risk of harm" if returned to mother's care. State v. L. P. L. O. , 280 Or. App. 292, 308, 381 P.3d 846 (2016). DHS also acknowledges that Oregon is not child's home state because child had not been in Oregon for the requisite six months under ORS 109.704(7) (defining "home state").

The question remains whether, on this record, we can determine either that the juvenile court had UCCJEA jurisdiction under another provision, as DHS contends, or that it did not have jurisdiction at all, as mother argues. For the following reasons, we do not make either of those determinations, but leave the questions open for the juvenile court to address on remand.

The parties' arguments implicate the UCCJEA provision that generally applies when a state is not the child's home state, but no other state has jurisdiction, either. ORS 109.741(1)(d). Stated more precisely, ORS 109.741(1)(d) provides that Oregon has subject matter jurisdiction if "[n]o court of any other state would have jurisdiction under the criteria specified" in the other subsections of ORS 109.741(1). Here, Virginia is the only other state that has been identified as potentially having UCCJEA jurisdiction, and only under the criteria set out in ORS 109.741(1)(a). That provision itself specifies two ways in which a state would have UCCJEA jurisdiction. The first is if the state "is the home state of the child on the date of the commencement of the proceeding," here, the dependency proceeding. ORS 109.741(1)(a). The second is if the state "was the home state of the child within six months before the commencement of the proceeding and the child is absent from [the] state but a parent or person acting as a parent continues to live in [the] state." Id . Mother contends that Virginia would have jurisdiction under both of those sets of criteria; DHS disagrees.

We first consider whether this record establishes-as a matter of law-either that Virginia was child's "home state" on the date the dependency proceeding commenced or that it was not. Again, "home state" is defined, as pertinent here, to be "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." ORS 109.704(7) (emphasis added). Importantly, the "home state" definition also specifies that "[a]ny temporary absence of any of the mentioned persons is part of the [six month] period." Id . In this case, it is undisputed that mother took child from Virginia in mid-April 2018 and that the Oregon dependency petition was filed in early September 2018, less than six months later. Mother contends that Virginia was child's home state on that early September date because (1) child had lived in Virginia with grandparents on a date six months earlier (and had been living with them in Virginia for nine months), (2) child's subsequent absence from Virginia (with mother in Oregon, then in California) was "temporary," and (3) grandparents were "acting as [child's] parent[s]" while she lived in Virginia. Under ORS 109.704(7), all three of those things would need to be true for Virginia to have been child's home state when the dependency petition was filed.

The first of the three points is undisputed; there is no material disagreement about the pertinent dates. On the second point, DHS acknowledges mother's testimony that she had intended child's absence from Virginia to be only temporary. DHS asserts, however, that mother's actions in "remain[ing] in Oregon for almost two months and then fle[eing] to California, where [child] was located three months later" are inconsistent with her testimony.

In our view, DHS's argument about mother's allegedly "inconsistent" actions shows why we cannot resolve, on this record, whether child's absence from Virginia was only "temporary." To determine whether a child's absence from a state was temporary under the UCCJEA, Oregon uses a "totality of the circumstances" test, which "looks at all the surrounding circumstances of a purported temporary absence, including intent of the parties and duration of absence, to assess whether the absence should be treated as a temporary departure from a putative home state." Schwartz and Battini , 289 Or. App. 332, 342-43, 410 P.3d 319 (2017). Here, the record includes evidence from which reasonable fact-finders could reach different conclusions regarding the parties' intent and the significance of other circumstances bearing on any decision about whether child's absence from Virginia was "temporary" for purposes of the UCCJEA. And, because the juvenile court ruled only (and incorrectly) that it had temporary emergency jurisdiction under the UCCJEA, it did not resolve whether child's absence from Virginia was temporary for the purposes of other UCCJEA provisions. Accordingly, that fact-bound question remains for the juvenile court to address in the first instance on remand.

We next address the third prong of the "home state" test as it would apply here-whether grandparents were "acting as [child's] parent[s]" when she lived in Virginia. In a single sentence in her reply brief, mother asserts that grandparents "meet the definition of 'a person acting as a parent' because they (1) had physical custody of [child] for that 9-month period [in Florida] and (2) have a right to legal custody of [child] under Virginia law," citing a Virginia statute stating that a court may award custody to a person other than a parent under certain circumstances.

We decline to analyze the merits of that argument because it is not sufficiently developed for our review. The UCCJEA defines "person acting as a parent" to mean a person who has had physical custody of a child for a certain specified amount of time and who "[h]as been awarded legal custody by a court or claims a right to legal custody under the law of this state." ORS 109.704(13)(b) (emphasis added). We have found no Oregon cases shedding light on what it means for a person to "claim[ ] a right to legal custody" for purposes of the UCCJEA. Neither mother nor DHS has expressed a view on what the word "claims" means in that statute. Nor has either party expressed an opinion on whether the documents that maternal grandparents filed in Oregon and Virginia courts establish that grandparents have "claim[ed] a right to legal custody" or whether any factual questions may still need to be resolved to answer that question. Accordingly, we decline to address the "acting as a parent" issue further, and we express no opinion on the meaning of the ORS 109.704(13) definition of "[p]erson acting as a parent" or how that definition might apply in this case.

In short, we cannot resolve either the "temporary absence" or the "acting as a parent" question in this appeal. Those questions remain for the juvenile court to address, in the first instance, if they arise on remand.

We turn to the second basis on which mother argues that Virginia would have UCCJEA jurisdiction under the ORS 109.741(1)(a) criteria-that Virginia "was the home state of the child within six months before the commencement of the proceeding and the child is absent from [Virginia] but a parent or person acting as a parent continues to live in [Virginia]." That argument implicates the second question discussed above, that is, whether maternal grandparents were acting as child's parent, for purposes of ORS 109.704(13), when she lived with them in Virginia. As explained above, we cannot resolve that question on this record.

To sum up: The juvenile court erred when it ruled that it had temporary emergency jurisdiction under the UCCJEA. We cannot determine as a matter of law, on appeal, whether the juvenile court may have had jurisdiction under another UCCJEA provision, as DHS advocated below. Accordingly, we vacate the judgment and remand for further proceedings. See Dept. of Human Service v. R. M. S. , 280 Or. App. 807, 810-11, 383 P.3d 417 (2016) (taking that approach under analogous circumstances).

Vacated and remanded.

      The UCCJEA is codified in Oregon at ORS 109.701 to 109.834, ORS 109.701, and it applies in juvenile dependency proceedings. ORS 419B.803(2).

      The definition of "child custody proceeding" includes juvenile dependency proceedings. ORS 109.704(4).

      Although we have discretion to review de novo, neither party has requested it, and, as we will describe below, the record is not sufficiently developed for any such review.

      The parties appear to agree that Virginia would not have jurisdiction under the criteria specified in ORS 109.741(1)(b) or (c). We note that Virginia has adopted the UCCJEA and its analog to ORS 109.741(1) -Va.Code Ann. § 20-146.12(A)(1) -is substantively identical to the Oregon provision.

      Indeed, neither party has addressed the significance, if any, of the juvenile court's observation that maternal grandparents had not "established a third party psychological parents in a custody matter in Virginia" or the court's assertion that it "would make [grandparents] establish that [they] have a custodial relationship first" before the court would allow grandparents to assert custodial rights over child that would trump mother's.