author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Thomas William EVENSEN, Defendant-Appellant.
    A160811
    Court of Appeals of Oregon.
    Argued and submitted February 15, 2018. June 26, 2019
    Steven J. Sherlag, Portland, argued the cause and filed the briefs for appellant.
    Michael A. Casper, Assistant Attorney General, 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.
   HADLOCK, P. J.

Defendant appeals a judgment convicting him of five counts of first-degree sexual abuse and one count of attempted first-degree sexual abuse. He raises 10 assignments of error on appeal, most of which we reject without extended discussion. We write primarily to address two of defendant's arguments. First, we consider defendant's assertion that the trial court erred when it admitted into evidence a recording of a face-to-face conversation between defendant and the victim, M, which M made without defendant's knowledge. We conclude, for reasons explained below, that the surreptitiously recorded conversation was admissible. Second, we address defendant's argument that the trial court erred by admitting a detective's testimony about her experiences with perpetrators and victims of child sexual abuse, including the comparative suggestibility of certain children based on their ages. We disagree with defendant's contention that the detective's testimony amounted to scientific evidence that was presented without the necessary foundation. Accordingly, we affirm.

To the extent that defendant's arguments on appeal challenge the legal bases for the trial court's evidentiary rulings, e.g. , its interpretation of the statutes governing admissibility of surreptitiously recorded conversations, we review those rulings for legal error. Yoshida's Inc. v. Dunn Carney Allen Higgins & Tongue , 272 Or. App. 436, 443, 356 P.3d 121 (2015), rev. den. , 358 Or. 794, 370 P.3d 502 (2016). We describe the facts relevant to the challenged rulings in a manner consistent with the trial court's express findings and those implicit in its rulings, which the record supports. State v. Rosales , 291 Or. App. 762, 764, 423 P.3d 112 (2018). "Because the trial resulted in convictions on all counts, we state the background facts in the light most favorable to the state." State v. Nelson , 246 Or. App. 91, 93, 265 P.3d 8 (2011).

M, who was 12 years old during the events described here, is the daughter of defendant's brother-in-law. M's parents had separated, and M's father had custody of her most of the time. However, both of M's parents had struggled with controlled substances and they sometimes were unavailable or unable to care for her. During those times, M would stay with other relatives, including defendant, who lived with his wife and child on a rural property. Defendant and his family at least sometimes supported M's mother's attempt to gain custody.

M had a room in defendant's house and stayed there a significant amount of the time, sometimes dividing her weeks between defendant's home and one of her parents' homes. Defendant drove M to and from school, took her on family outings, bought her a health club membership, and gave her an allowance. Defendant subscribed to a telephone service and used that service to make calls from his home.

One Saturday night while she was staying at defendant's house, M asked her mother to come get her. When her mother asked why, M explained that "[defendant] has given me all these things because I let him play with me and I don't ever want to see him again. Just please let me come home."

M also sent her mother an audio recording she had made of a conversation between herself and defendant, using an iPhone that did not then have an active telephone subscription. The conversation that M recorded took place when she and defendant were at defendant's house; she made the recording without defendant's knowledge. The recording included a lengthy exchange that began with defendant making a proposition:

"Yeah, this may sound weird to you, but I mean nothing weird by it, okay? Being's [defendant's wife and child] went off and left us this evening, would you like to be my date this evening and go to town and do whatever you would like? Not as in a date type idea, but ..."

The conversation continued with M and defendant discussing the possibility of going "shopping," a term which they sometimes used to describe looking in stores without purchasing anything, or going on a "buying trip." Defendant then suggested that he might give M cash to spend at stores or on a phone card.

Additional statements that M and defendant made could reasonably be interpreted as confirming that defendant would give M money only if she let him do something-the "same thing" he apparently had done before-a thing that M did not want him to do. M told defendant that she does not like to do that "same thing" and that defendant "always say[s] not right now, but just, ow." Defendant then explained himself to M:

"[Defendant:] Well see my problem is [M], is I keep myself up at night telling myself, you're not dreaming about [M]. I'm not gonna dream about [M], and six out of seven nights of the week I dream about you. I think about you all day when I'm out working. Like I said there's something wrong with me.
"[M:] Uh huh.
"[Defendant:] I think about you consistently, all the time."

The conversation continued, with defendant saying that he would take M shopping, but not "buying," and M saying "I don't want you to right now, like, and I can't get any unless you get to right now, and I don't want you to right now, cuz ..." Defendant told M that he had already given her "a bunch of special privileges" that day and declared that those special privileges were "done" and he would not do anything for her that he would not do for his other nieces or nephews. When M asked why, defendant explained:

"[Defendant:] Because you have consistently always dangled the bait out there in front, been a tease, and never follow through. So I kind of decided from now on, you have to earn these special privileges beforehand.
"[M:] Yeah, I know, and I want to go shopping, but I don't want you to have to, I don't want you to do that right now. Like, cuz I want to get that, I want to go shopping and that was happening really soon which means you have to get what you want right now, and I don't want you to right exactly now."
"[Defendant:] So we won't worry about it. We'll just go shopping.
"[M:] Okay, I mean buying. Let's go. I guess we can just go shopping which is looking.
"[Defendant:] (inaudible)
"[M:] Why?
"[Defendant:] Cuz then I can't (inaudible). You mad at me now?"

After hearing that recording, M's mother contacted police on the following Monday morning.

M was interviewed by police later that day. Before that, however, M met with her school counselor, who described M as "very uncomfortable." M told the counselor that she had been touched in a private area "over the top of clothing," but M "really start[ed] to get tight" when the counselor asked whether she had been touched underneath clothing, and the counselor told M they would not discuss that.

Detective Yerrick interviewed M that afternoon. M told Yerrick about several times that defendant had touched her sexually, including on her breasts, buttocks, and vagina. Two incidents occurred when M was in or near a hot tub, others occurred when defendant gave M massages, and others occurred when defendant told M she had to give him a hug.

Defendant was charged with five counts of first-degree sexual abuse and one count of attempted first-degree sexual abuse. The state moved to admit the audio recording that M had made of her conversation with defendant. The trial court granted that motion, and the recording was played for the jury at trial. Witnesses at trial included M, defendant, and Yerrick. We describe Yerrick's testimony in detail later in this opinion, in conjunction with our discussion of defendant's argument that the testimony was erroneously admitted. Here, it is sufficient to note generally that Yerrick described her own experiences investigating reports of child abuse. In that regard, she testified that younger children tend to be more susceptible to "suggestibility" about what happened than older children, that very few cases she had investigated involved a suspect who was "a stranger to the child," and that suspects typically were people "connected to the [victim's] family" and "someone that the parent has a good relationship with." The jury convicted defendant on all counts and he appeals.

THE SURREPTITIOUS RECORDING

In his first assignment of error on appeal, defendant argues that the trial court erred when it admitted evidence of the audio recording that M made, without defendant's knowledge, of her conversation with him. Defendant's argument is based on ORS 165.540, which generally "prohibits, subject to certain exceptions, the interception of a private conversation unless all parties to the conversation are informed that their conversation is being recorded." State v. Klein , 352 Or. 302, 307, 283 P.3d 350 (2012). Except in limited circumstances not applicable here, ORS 41.910 makes inadmissible "the contents of any wire or oral communication" that was intercepted in violation of ORS 165.540. Defendant contends that the recording is inadmissible under those statutes. The state disagrees, asserting that a particular exception to the general prohibition applies, viz. , the "homeowner's exception" created by ORS 165.540(3), which says that the prohibitions described in certain subsections of ORS 165.540(1) "do not apply to subscribers or members of their family who perform the [prohibited acts] in their homes." See generally State v. Rainey , 294 Or. App. 284, 288, 431 P.3d 98 (2018) (describing the subsection (3) exception as the "homeowner's exception").

The statute at issue- ORS 165.540 -is lengthy and any attempt to discern the meaning of the "homeowner's exception" must take into account the entire statute as well as its legislative history. Accordingly, we begin our published analysis by quoting liberally from the statute, before we set out the parties' arguments in more detail. Subsection (1) of ORS 165.540 describes the acts that the statute generally prohibits:

"(1) Except as otherwise provided in [other statutes not applicable here] or subsections (2) to (7) of this section, a person may not:
"(a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which the person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one participant.
"(b) Tamper with the wires, connections, boxes, fuses, circuits, lines or any other equipment or facilities of a telecommunication or radio communication company over which messages are transmitted, with the intent to obtain unlawfully the contents of a telecommunication or radio communication to which the person is not a participant.
"(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.
"(d) Obtain the whole or any part of a conversation, telecommunication or radio communication from any person, while knowing or having good reason to believe that the conversation, telecommunication or radio communication was initially obtained in a manner prohibited by this section.
"(e) Use or attempt to use, or divulge to others, any conversation, telecommunication or radio communication obtained by any means prohibited by this section."

Thus, the first three paragraphs of ORS 165.540(1) describe the basic actions that the statute prohibits. Paragraph (a) prohibits obtaining (or attempting to obtain) telecommunications and radio communications. Those types of communications both involve the transmission of sounds and other signals, either by wired or wireless means. Paragraph (b) prohibits tampering with the equipment or facilities associated with those types of communications, with the intention of obtaining the communications. Paragraph (c) prohibits obtaining "a conversation" unless all parties to the conversation are aware that it is being obtained. A "conversation" is specifically defined to exclude the types of communication that are addressed in paragraphs (a) and (b) of ORS 165.540 : " 'Conversation' means the transmission between two or more persons of an oral communication which is not a telecommunication or a radio communication." The definition includes the kind of conversation that was recorded here-a face-to-face conversation between two people. The prohibition against surreptitiously "obtaining" a conversation includes surreptitiously recording it. See Rainey , 294 Or. App. at 288, 431 P.3d 98 (implicitly so holding); State v. Prew , 213 Or. App. 336, 339, 161 P.3d 323 (2007) (same).

The parties agree, and we concur, that, by surreptitiously recording her face-to-face conversation with defendant on her iPhone, the victim engaged in the conduct described in ORS 165.540(1)(c) -that is, she obtained a conversation by means of a device without all participants in the conversation being aware that that was happening. Under ORS 165.540(1), that conduct was therefore prohibited unless it was permissible under subsections (2) through (7) of the statute.

Subsection (2) of ORS 165.540 provides that the prohibitions in subsection (1) do not apply to certain public officials and certain officers, employees, and agents of telecommunications and radio companies when they are engaged in particular identified activities. Subsections (4) through (7) describe additional exceptions that also apply to specific individuals and activities. The state does not argue that any of those provisions applies here. Subsection (3) of the statute describes the homeowner's exception that is at issue in this case, and it specifically states that the exception applies to the recording of conversations that would otherwise violate ORS 165.540 (1)(c) :

"(3) The prohibitions in subsection (1)(a), (b) or (c) of this section do not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes."

The question presented is whether the trial court erred when it ruled that the subsection (3) homeowner's exception applies to the iPhone recording that the victim made of her conversation with defendant.

In challenging the applicability of the homeowner's exception, defendant focuses on the legislature's use of the word "subscribers"

in subsection (3). According to defendant, the use of that word means that the exception applies only when a person uses a device to which a person "subscribes" to intercept, listen to, or record a conversation. In defendant's view, that conclusion follows from (1) the ordinary meaning of "subscriber," (2) legislative history suggesting that the legislature intended only to permit telephone subscribers to record face-to-face conversations in their homes using the telephone services to which they subscribe, and (3) the legislature's repeated amendments to ORS 165.540, which have not changed the way in which the word "subscriber" is used in the statute. Defendant posits that the homeowner's exception thus ensures that "a 'subscriber or member of their family' is immune to prosecution for listening in or overhearing conversations on open phone lines or radio transmissions in their own home." (Underscoring in original.) Defendant suggests that the exception embodies legislative intention to "protect[ ] people in the modern era from incidental, accidental, or what is colloquially known as 'butt' dials" and that the exception also may have been aimed at allowing family members to monitor each others' conversations.

Here, defendant argues, the homeowner's exception did not apply because M recorded her face-to-face conversation with defendant using an iPhone that had no telephone service. Accordingly, defendant concludes, neither M nor any of her family members was a "subscriber" within the meaning of ORS 165.540(3), and that provision therefore did not exempt the iPhone recording from the prohibition set out in ORS 165.540(1)(c).

In response, the state acknowledges that the use of the word "subscribers" in ORS 165.540(3) makes the homeowner's exception challenging to apply to the sort of conversations otherwise prohibited by ORS 165.540(1)(c). In its view, the term "subscribers" is a "confusing artifact from the original 1955 statute," which did not address face-to-face communications. Nonetheless, the state offers two ways that subsection (3) can be read to apply here, exempting M's conduct from the subsection (1)(c) prohibition. First, the state suggests, the term "subscribers" could simply be read out of subsection (3), meaning that the homeowner's exception would allow any person to obtain communications that occur in the family home, whether in person or over a telephone line. Second, the state argues, "subscribers" could be interpreted to refer to a person who subscribes to a telephone or radio service, allowing that person or the person's family members to use any device to obtain communications that occur in that home-again, whether in person or over the telephone line. Under either of those interpretations, the state argues, the exception would apply to M, as defendant himself subscribed to a telephone service that he used in his home.

We begin our analysis by considering the statutory text and context and the legislative history, which we find useful here. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). Because the legislature did not define the term "subscribers," we give the word its ordinary meaning. State v. Walker , 356 Or. 4, 14, 333 P.3d 316 (2014). When the legislature enacted ORS 165.540, the ordinary meaning of "subscriber" was, unsurprisingly, one who "subscribes." Webster's Second New Int'l Dictionary 2513 (unabridged ed. 1961). But the dictionary cannot specify to what a "subscriber" must subscribe to come within the ambit of any particular statute. On that point, both context and legislative history are helpful.

First, subsection (3)-the only part of ORS 165.540 that uses the term "subscribers"-refers back to three subparagraphs of subsection (1), two of which (paragraphs (a) and (b)) refer to telecommunications and radio communications. That cross-reference suggests that the subscription at issue would be to a telecommunication or radio service.

Legislative history confirms that suggestion. "What is now ORS 165.540 was originally adopted in 1955." Rainey , 294 Or. App. at 288, 431 P.3d 98. As we explained in Rainey , the original version of ORS 165.540(1) "prohibited only obtaining or tampering with telecommunications or radio communications; there was no prohibition against recording face-to-face communications." Id . ; see id . at 289, 431 P.3d 98 (noting that the legislature added "what is now paragraph (c), extending the prohibition to 'conversations,' " in 1959). It was in that context that the legislature adopted the homeowner's exception, which then exempted from ORS 165.540(1) 's prohibitions "subscribers or members of their family who perform the acts prohibited in this section in their homes." ORS 165.540(2) (1955). Legislative history from 1955 reflects involvement of telephone companies in drafting the bill that eventually was codified at ORS 165.540. Minutes, Senate Judiciary Committee, Feb. 17, 1955, 1 (comments of senator acknowledging work of the telephone companies on the bill draft and testimony of a representative of the Pacific Telephone and Telegraph Company in support of the bill). Multiple legislators also referred to the proposed homeowner's exception in a way that reflects an understanding that the word "subscribers" was understood to refer to people who subscribed to a telephone service. Minutes, Senate Judiciary Committee, Apr. 21, 1955, 2-3 (statements by Senators Gills, Lowry, and Francis). As we concluded in Rainey , the 1955 legislative history shows that the legislature "fashioned an exception for telecommunication or radio communication subscribers or their families" who engaged in the otherwise prohibited conduct in their homes. 294 Or. App. at 289-90, 431 P.3d 98 (emphasis added).

In that 1955 context, the application of "subscriber" in the homeowner's exception was not difficult to understand. At the very least, it demonstrates a legislative desire to ensure that people who subscribed to telephone services would not be prohibited from recording telephone conversations in their homes. Cf. Minutes, Senate Judiciary Committee, Apr. 21, 1955, 2-3; Apr. 22, 1955, 1 (reflecting consideration of whether to have the exception extend to places of business).

The 1959 amendments to ORS 165.540(1) led to the interpretive challenge we address here. That year, the legislature amended the statute to add paragraph (c), which generally prohibits surreptitious recording of oral conversations, which, by definition, do not include telephone conversations. See ORS 165.535(1) (1959) (defining "conversation" to exclude "a telecommunication or a radio communication"). The legislature also amended ORS 165.535 (1959) to add a definition for the term "conversation," used in newly added paragraph (c) of ORS 165.540(1) (1959). In addition, it amended the homeowner's exception to say that the subsection (1) prohibitions "shall not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes." ORS 165.540(3) (1959). Thus, although the legislature amended the homeowner's exception to explicitly apply to all of the subsection (1) prohibitions-including the newly added prohibition against surreptitious recording of face-to-face conversations-the legislature retained the provision limiting the exception to "subscribers or members of their family" who perform the otherwise prohibited acts "in their homes." The legislative history from 1959 reveals nothing about how the legislature intended the homeowner's exception to apply to recording of face-to-face communications.

In 1961, the legislature amended the homeowner's exception so that it does not apply to all of the subsection (1) prohibitions, as it had previously, but applies only to those set out in paragraphs (a), (b), and (c). ORS 165.540(3) (1961). Thus, while restricting the exception's applicability, the legislature chose to maintain its application to the undisclosed recording of face-to-face communications. Although no legislative minutes, testimony, or other legislative history sheds light on the reasoning behind that decision, it is clear from the way the legislature amended the statute over the years that it specifically intended the homeowner's exception to apply to the conduct-including recording of face-to-face conversations-otherwise prohibited by ORS 165.540(1)(c).

We consider the parties' proposed interpretations of the statute in light of that statutory history, keeping in mind that we are "responsible for identifying the correct interpretation, whether or not asserted by the parties." Stull v. Hoke , 326 Or. 72, 77, 948 P.2d 722 (1997).

Again, defendant contends that the ORS 165.540(3) homeowner's exception applies only to subscribers and their family members who, in their homes, make use of the telephone or radio communication services to which they subscribe to obtain the conversations at issue. That view cannot be squared with ORS 165.540(1)(c) ; it prohibits obtaining only conversations, which are defined as not including telecommunications or radio communications. ORS 165.535(1). Defendant does not cogently explain how a subscriber could use a telephone or radio service-the service to which the person subscribed-to obtain communications that are neither telecommunications nor radio communications (to which the exception separately applies, by cross-referencing ORS 165.540(1)(a) ). And even if it is possible to conceive of such conduct, particularly when thinking of modern technology, it is implausible that the legislature had such conduct in mind in 1961 when it extended the homeowner's exception to apply to the prohibition against face-to-face communications.

We turn to the state's two proffered interpretations of ORS 165.540(3). The state first suggests reading the homeowner's exception to apply whenever a person obtains a communication in the home, whether that communication occurs over the phone or radio or is face-to-face. According to the state, that is likely what the legislature had in mind when it applied the exemption to face-to-face communications. However, the state also correctly points out that that interpretation effectively ignores the word "subscribers" in ORS 165.540(3).

We decline to read the term "subscribers" out of the statutory provision defining the homeowner's exception. We must "construe a statute in a manner that gives effect, if possible, to all its provisions." Crystal Communications, Inc. v. Dept. of Rev. , 353 Or. 300, 311, 297 P.3d 1256 (2013). Even if the state were correct that the legislature intended that the exception apply to any person seeking to obtain face-to-face communications in the home, "the wording ultimately enacted must be capable of carrying out that intention." Rainey , 294 Or. App. at 291, 431 P.3d 98. We cannot pretend that ORS 165.540(3) is not limited to "subscribers and their families."

The state's second suggestion is to interpret "subscribers" to refer to people who subscribe to phone or radio services, without giving the term any additional significance. The state observes that the legislature clearly intended the term to have that meaning when it adopted the 1955 legislation, before it added the paragraph (c) prohibition against obtaining face-to-face communications. According to the state, when that original meaning of the term is carried through to the present day, the result is that the homeowner's exception now allows any person who subscribes to a phone service (or that person's family members) to obtain a communication while in the subscriber's home-whether the communication occurs over the phone or radio or is face-to-face. Recognizing that it might seem arbitrary to extend the exception broadly to telephone subscribers and not to other individuals, the state suggests that such an interpretation may not reflect legislative intent, but that it adheres most closely to a plain reading of the statutory text.

On that point, we agree with the state. Even if we cannot discern the legislature's reason for allowing only-and all-telephone subscribers and their family members to surreptitiously obtain face-to-face communications in the subscriber's home, ORS 165.540(3) plainly applies to "subscribers or members of their family" who engage in conduct otherwise prohibited by ORS 165.540(1)(c) "in their homes," and ORS 165.540(1)(c) plainly covers the act of recording a face-to-face conversation with a person who is not informed that the conversation is being recorded. In the absence of context or legislative history that persuades us that the legislature intended something different, we conclude that we should interpret ORS 165.540(3) in the way most faithful to the statutory text. See Rainey , 294 Or. App. at 291, 431 P.3d 98 (construing a different aspect of ORS 165.540(3) according to its "actual wording"). We therefore construe ORS 165.540(3) to apply to subscribers to telecommunications and radio services (and their family members) who, in their homes, engage in conduct otherwise prohibited by ORS 165.540(1)(c), regardless of whether the subscribed-to service is utilized to obtain the conversation.

Applying that interpretation here, we conclude that the trial court did not err by admitting the conversation that M recorded on her iPhone, notwithstanding that she did not have active telephone service on that device. Defendant subscribed to a telephone service that he used in his home. The trial court determined that M was defendant's family member and that she recorded their conversation while in their home. M's conduct in recording the conversation thus fell within ORS 165.540(3) and the recording therefore was not inadmissible under ORS 41.910. For those reasons, we reject defendant's first assignment of error.

DETECTIVE YERRICK'S TESTIMONY

In conjunction with his fourth assignment of error, defendant challenges the trial court's admission of certain testimony from Detective Yerrick over defendant's objection that the evidence was scientific and lacked an adequate foundation. Yerrick is the detective who interviewed M on the Monday after M told her mother what defendant had done and played the iPhone recording for her. Yerrick testified at trial about what M told her, including descriptions of defendant having touched her sexually on multiple occasions.

Yerrick also testified more generally about her experience as a detective who had, for nearly five years, primarily investigated cases of physical and sexual abuse of children. She explained that she was expected to follow the Oregon Interviewing Guidelines when interviewing minors "[f]or uniformity, and to limit the amounts of suggestibility with children." When asked the age range during which suggestibility was concerning, Yerrick answered, "[m]ostly in the three to four age group. That's a really, really tough group to interview. Once you get into the five and six year old range, you see a little bit more of them correcting you if you say something wrong ***."

Defendant objected to that testimony as scientific evidence that lacked an adequate foundation under State v. Brown , 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key , 321 Or. 285, 899 P.2d 663 (1995). After discussion outside the jury's presence, the court overruled that objection. Then, once the jury had returned, the prosecutor asked Yerrick if, "in [her] training and experience," "the interviewing of children, little kids like three or four," was "more concerning than older kids." Yerrick responded affirmatively and testified that she would not interview children that young; instead, she would "send them to someone who does forensic interviewing of children full time." She added that interviewing children the victim's age was "definitely a lot easier in [her] opinion."

In response to a different line of questioning, Yerrick also testified that, in the hundreds of child physical and sexual abuse cases she had investigated, the children "are usually children who I, I guess most would consider high risk," explaining:

"In other words, they come from one parent homes. They come from abusive homes where there's parenting issues overall, substance abuse in the home, maybe they've been in and out of foster care, things like that. *** I would say, in a vast majority of the cases that I've investigated, these are not kids that come from your white picket fence families where there's a two parent home and good parental structure and good support systems and things like that. There's usually some area of their life where they are lacking and they're *** high risk kids."

Yerrick also testified that, in thinking about all the cases she had investigated over the years, "maybe a handful" involved an offender who was "a stranger to the child." More typically, the offender was somebody "connected to the family" that "the parent has a good relationship with." Defendant also objected, unsuccessfully, to that testimony as scientific evidence that lacked an adequate foundation.

On appeal, defendant again argues that the quoted portions of Yerrick's testimony were inadmissible because they constituted scientific evidence that lacked an adequate Brown / O'Key foundation establishing the testimony's scientific validity. We understand defendant's arguments to be directed at Yerrick's testimony about the extent to which children may be "suggestible" during interviews and at Yerrick's testimony that, in her experience, people who abuse children often are connected with the victim's family. Defendant acknowledges that Yerrick "did not mention familiarity with any literature or studies" supporting her views. Nonetheless, defendant asserts that Yerrick's testimony required a scientific foundation because it was "based on incidents of a repeated pattern, i.e. social science." In a supplemental brief, defendant analogizes Yerrick's testimony to the evidence at issue in State v. Henley , 363 Or. 284, 422 P.3d 217 (2018), in which the Supreme Court "held that-at least as offered in the context of the trial in that case-evidence about sexual grooming of children 'was scientific evidence under OEC 702 ' that could not be admitted 'without first requiring the state to establish its scientific validity.' " State v. Plueard , 296 Or. App. 580, 582, 439 P.3d 556, adh'd to as modified on recons. , 297 Or. App. 592, 443 P.3d 1195 (2019) (quoting Henley , 363 Or. at 304, 422 P.3d 217 ). Like the evidence in Henley , defendant argues, Yerrick's testimony "was impliedly based in science." (Emphasis in original.)

In response, the state argues that Henley is not controlling because the witness in that case discussed her advanced educational degrees and testified that she had specialized training specifically about grooming, which is part of what led the Supreme Court to conclude that lay jurors would have understood her testimony to have "the persuasive value of scientific principle." 363 Or. at 303, 422 P.3d 217. Here, the state contends, Yerrick's testimony was "explicitly grounded in [her] own practical experience as [a] police officer" and Yerrick-in contrast with the Henley witness-was "not presented as a person with specialized knowledge of a scientific concept." For those reasons, the state concludes that the jury would not have perceived Yerrick's testimony as scientific in nature and the evidence did not, therefore, require a Brown / O'Key foundation.

We begin our analysis by reviewing the Supreme Court's decision in Henley and our subsequent decision in Plueard . In Henley , the Supreme Court concisely explained when evidence is "scientific" such that it requires a foundational showing of scientific validity:

"Expert evidence is 'scientific' under OEC 702 when it is expressly presented to the jury as scientifically grounded ***. Expert evidence also is 'scientific' under OEC 702 when it 'draws its convincing force from some principle of science,' *** or 'implies a grounding in the methods and procedures of science,' and would likely be perceived by the jury as imbued with the 'persuasive appeal of science.' "

363 Or. at 301, 422 P.3d 217 (internal citations omitted).

The challenged evidence in Henley related to "grooming" and came in the form of testimony by a CARES forensic interviewer, Palfreyman, who interviewed a child who had reported being sexually abused. 363 Or. at 288, 422 P.3d 217. Palfreyman testified about her educational background, which included a master's degree in social work and advanced training in forensic interviewing of children. Id . at 289, 422 P.3d 217. The prosecutor asked Palfreyman whether she "had any training regarding a concept called grooming," and she answered affirmatively, explaining both that she had training on grooming during college and that, "due to [her] forensic interview training we talk about grooming *** leading up to offending." Id . at 290, 422 P.3d 217. Palfreyman also testified that grooming is conduct that an offender engages in "to build trust and weaken defense[s] of the child," and she testified that certain activity of the Henley defendant could be considered grooming. Id . at 291, 422 P.3d 217. The Supreme Court held that Palfreyman's testimony was scientific evidence that could not be admitted in the absence of an adequate Brown / O'Key foundation because Palfreyman was presented as an expert with specific training "on the subject of grooming behavior by child sexual abuse offenders," which implied that the substance of the training "was authoritative and grounded in some sort of behavioral science," id. at 302, 422 P.3d 217, and covered information that "was not common knowledge," id . at 304, 422 P.3d 217. In addition, the state used Palfreyman's testimony to establish that, by engaging in specific conduct (massaging the child), the "defendant was grooming [the child] and planning or preparing for his later sexual abuse of [the child]." Id . at 302, 422 P.3d 217. Under those circumstances, the Supreme Court concluded that Palfreyman's testimony about grooming was scientific evidence that could not be admitted without a foundation establishing its scientific validity.

We held in Plueard that testimony about grooming also constituted scientific evidence under the circumstances of that case. In Plueard , as in Henley , the grooming evidence was presented by a CARES interviewer, Petke, who testified on that topic after being asked whether, through her training and experience, she had "become familiar with a phenomenon called grooming." 296 Or. App. at 584, 439 P.3d 556. We observed that "[t]hat phrasing itself [could] evoke, at least in certain contexts, a kind of scientific air, as it suggests the existence of a recognized pattern of conduct that has been determined to have particular significance." Id . at 588, 439 P.3d 556. Given Henley 's recognition that "there is a body of behavioral science research on grooming behavior," and the nexus between Petke's testimony about grooming and her description of her advanced training and experience, we held that the "circumstances would have suggested to the jury that Petke's testimony was grounded in science." Id . Moreover, the jury would have viewed the testimony as scientific, not only because of Petke's specialized education and experience, but also because that testimony included "a definition of grooming, which was not common knowledge." Id .

In our view, the holdings in Henley and Plueard are based on concerns that are not implicated here. In both of those cases, the CARES interviewers were asked questions that, themselves, suggested that the subsequent testimony would have some sort of authoritative scientific character: In Henley , the witness was asked about her training in "a concept called grooming," 363 Or. at 290, 422 P.3d 217 ; in Plueard , the witness was asked whether, through her training and experience, she had "become familiar with a phenomenon called grooming." 296 Or. App. at 584, 439 P.3d 556. Both of those questions would suggest to a jury the existence of some recognized phenomenon that exists independently of the witness's own personal experience. No analogous implication is present here. Yerrick did not purport to explain, based on some outside authoritative source, that her interview technique was guided by principles grounded in science or that it was safe for her to interview this child based on her age. Rather, she testified almost exclusively with respect to her own experience with children, and her brief reference to following a set of guidelines meant to reduce the risk of "suggestibility" did not lend her testimony a "scientific air." Plueard , 296 Or. App. at 588, 439 P.3d 556. Similarly, Yerrick did not suggest that any "phenomenon" formed the basis of her testimony that people who sexually abuse children are only rarely strangers to their victims; to the contrary, she expressly based that on her own experience as a police officer.

Moreover, in both Henley and Plueard , the CARES interviewers had advanced degrees and specific training about grooming. Henley , 363 Or. at 289, 422 P.3d 217 ; Plueard , 296 Or. App. at 584, 439 P.3d 556. In addition, those witnesses testified about the "concept" or "phenomenon" of grooming soon after describing their educational backgrounds, bolstering the implication that the witnesses' understanding of that phenomenon was scientifically based. Yerrick did not give analogous testimony from which the jury could have inferred that she had any specialized level of education-based expertise, much less that her expertise was linked to her testimony about children's suggestibility or the relationships between child victims of sexual abuse and the people who abuse them. Rather, her training on those topics was presented to the jury as limited to her familiarity with the Oregon Interviewing Guidelines. Indeed, on the subject of suggestibility, Yerrick undermined any suggestion of expertise she might otherwise have conveyed when she asserted that she would not interview young children herself, but instead would "send them to someone who does forensic interviewing of children full time."

It also is significant that Yerrick did not purport to draw any scientific- or research-based connection between her challenged testimony and the conduct of M or defendant. In Henley , the witness offered a list of behaviors "that might be considered grooming" before applying her expertise to the case before the jury. 363 Or. at 291-92, 422 P.3d 217. Thus, the evidence suggested to the jury that conduct that might otherwise seem benign (the defendant massaging the child) actually was evidence of the defendant's sexual intention toward his victim. No analogous testimony is present here; Yerrick's testimony was not directed at explaining-based on scientifically derived principles-how otherwise benign conduct might actually be sinister. Rather, Yerrick's testimony was simply that, in her own training and experience, older children are less "concerning" to interview because, as children get older, "you see a little bit more of them correcting you if you say something wrong." That testimony did not suggest that Yerrick's experience was grounded in scientific research.

In sum, the overriding concerns that led to the holdings in Henley and Plueard are not present here. Yerrick would not have "appeared to the jury as an expert" on child suggestibility or the relationships between child abusers and their victims; nor was her testimony presented in a way that would have led the jury to "accord[ ] the testimony the persuasive value of scientific principle." Henley , 363 Or. at 303, 422 P.3d 217. The trial court was not required to exclude the testimony on the ground that the state had not laid a foundation showing its scientific validity under Brown and O'Key .

Affirmed.

      The arguments we discuss in the opinion are those raised in defendant's first and fourth assignments of error. We reject without discussion the arguments that defendant raises in his second, third, sixth, eighth, ninth, and tenth assignments of error. We reject the fifth assignment of error for the reasons later set out. See 298 Or. App. at 310 n. 9. In his seventh assignment of error, defendant challenges the trial court's decision to release to defendant only a small portion of certain records from the Department of Human Services (DHS) that the court reviewed in camera . We have reviewed the records provided by DHS in camera and have determined that the trial court did not commit reversible error in not disclosing additional documents to defendant. We reject defendant's seventh assignment of error for that reason.

      ORS 165.540 was enacted in 1955 and has been amended numerous times. Or. Laws 1959, ch. 681, § 2; Or. Laws 1961, ch. 460, § 1; Or. Laws 1979, ch. 744, § 9; Or. Laws 1983, ch. 693, § 1; Or. Laws 1983, ch. 740, § 35; Or. Laws 1983, ch. 824, § 1; Or. Laws 1987, ch. 320, § 87; Or. Laws 1989, ch. 983, § 14a; Or. Laws 1989, ch. 1078, § 1; Or. Laws 2001, ch. 104, § 54; Or. Laws 2001, ch. 385, § 4; Or. Laws 2003, ch. 14, § 62; Or. Laws 2007, ch. 879, § 1; Or. Laws 2009, ch. 488, § 2; Or. Laws 2015, ch. 550, § 2; Or. Laws 2015, ch. 553, § 1; Or. Laws 2019, ch. 216, § 3. Although the events of the case occurred before the 2019 amendment, those changes do not affect the analysis.

      "Telecommunication" is defined as "the transmission of writing, signs, signals, pictures and sounds of all kinds by aid of wire, cable or other similar connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, equipment and services (including, among other things, the receipt, forwarding and delivering of communications) incidental to such transmission." ORS 165.535(4). "Radio communication" is defined as "the transmission by radio or other wireless methods of writing, signs, signals, pictures and sounds of all kinds, including all instrumentalities, facilities, equipment and services (including, among other things, the receipt, forwarding and delivering of communications) incidental to such transmission." ORS 165.535(3).

      Although we often refer to face-to-face conversations in this opinion, because that is the type of communication that the victim recorded, we do not mean to imply that ORS 165.540(1)(c) applies only to that type of communication, and we express no opinion on that point.

      Those statutory exceptions are as follows:
      "(2)(a) The prohibitions in subsection (1)(a), (b) and (c) of this section do not apply to:
      "(A) Officers, employees or agents of a telecommunication or radio communication company who perform the acts prohibited by subsection (1)(a), (b) and (c) of this section for the purpose of construction, maintenance or conducting of their telecommunication or radio communication service, facilities or equipment.
      "(B) Public officials in charge of and at jails, police premises, sheriffs' offices, Department of Corrections institutions and other penal or correctional institutions, except as to communications or conversations between an attorney and the client of the attorney.
      "(b) Officers, employees or agents of a telecommunication or radio communication company who obtain information under paragraph (a) of this subsection may not use or attempt to use, or divulge to others, the information except for the purpose of construction, maintenance, or conducting of their telecommunication or radio communication service, facilities or equipment.
      "* * * * *
      "(4) The prohibitions in subsection (1)(a) of this section do not apply to the receiving or obtaining of the contents of any radio or television broadcast transmitted for the use of the general public.
      "(5) The prohibitions in subsection (1)(c) of this section do not apply to:
      "(a) A person who records a conversation during a felony that endangers human life;
      "(b) A person who records a conversation in which a law enforcement officer is a participant, if [certain conditions are met];
      "(c) A person who, pursuant to ORS 133.400, records an interview conducted by a peace officer in a law enforcement facility;
      "(d) A law enforcement officer who is in uniform and displaying a badge and who is operating [certain types of recording equipment]; or
      "(e) A law enforcement officer who, acting in the officer's official capacity, deploys an Electro-Muscular Disruption Technology device that contains a built-in monitoring system capable of recording audio or video, for the duration of that deployment.
      "(6) The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of [certain public, governmental, educational proceedings]; or
      "(c) Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made.
      "(7) The prohibitions in subsection (1)(a), (c), (d) and (e) of this section do not apply to [certain radio communications]."
      The state initially argued that the recording was admissible both under the homeowner's exception, ORS 165.540(3), and under ORS 165.540(5)(a), on the theory that the victim had "record[ed] a conversation during a felony that endangered human life." The state no longer pursues that latter argument.

      The complete definition then provided:
      "1. One who subscribes; specif. : a One who signs, as a letter, document, agreement, etc. b One who agrees or consents. c One who favors, aids, or supports, as by money contribution or by moral influence, personal membership, etc."
      Webster's Second New Int'l Dictionary 2513 (unabridged ed. 1961) (boldface in original).

      The 1959 amendment also added additional prohibitions to ORS 165.540(1), included in paragraphs (d) and (e).

      Similarly, much of the conduct that defendant suggests the legislature may have wished to protect-like one family member eavesdropping on another's telephone conversation-already would be covered by the homeowner exception's application to conduct otherwise prohibited by ORS 165.540(1)(a).

      On appeal, defendant also challenges those aspects of the trial court's ruling, arguing that the homeowner's exception does not apply because-even if defendant's subscription otherwise was sufficient to trigger application of the exception-M was not defendant's family member and was not in her home when she made the recording. We reject those arguments without discussion.

      Defendant combines argument on his fourth assignment of error with argument on his fifth assignment of error, in which he contends that the trial court erred by "allowing" Yerrick "to vouch for Complainant under the guise of 'training and experience.' " Although defendant argued to the trial court about what he considered impermissible vouching in other contexts, he did not adequately preserve a vouching objection to the evidence that he appears to challenge in his fifth assignment of error. Indeed, we note that defendant has not, in conjunction with his fifth assignment, identified a specific ruling of the trial court that he contends is error, as ORAP 5.45(3) requires. We reject the fifth assignment of error for those reasons.

      On cross-examination, defendant elicited additional testimony from Yerrick about the guidelines and how she tried to follow them when interviewing children, but the additional information that he elicited himself cannot form the basis for his claim that reversal is required.


source: Caselaw Access Project

author: ORTEGA, P.J.

license: Public Domain

text:
    In the MATTER OF the MARRIAGE OF Susan Jacqueline BOATFIELD, Petitioner-Appellant, and Randall Edward Boatfield, Respondent-Respondent.
    A153616
    Court of Appeals of Oregon.
    Argued and submitted on May 15, 2018. May 30, 2019
    Michael J. Fearl, Portland, argued the cause for appellant. Also on the reply brief was Schulte, Anderson, Downes, Aronson & Bittner, P.C.
    On the opening brief was Clayton C. Patrick.
    Erin K. Fitzgerald argued the cause for respondent. Also on the brief was Case & Dusterhoff, LLP, Beaverton.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P.J.

Wife appeals a general judgment of dissolution and a supplemental judgment awarding spousal support, asserting five assignments of error. The primary disputes on appeal concern the spousal support and life insurance awards. We reject wife's other three assignments of error without further discussion. We conclude that the trial court failed to make sufficient findings to support its spousal support award and its decision not to require husband to purchase life insurance, leaving us unable to determine whether those determinations were "just and equitable" under ORS 107.105(1)(d). Accordingly, we reverse and remand for the trial court to make the appropriate findings and to reconsider the spousal support and life insurance awards, and otherwise affirm.

Wife requests de novo review; however, because this is not an exceptional case, we decline to exercise our discretion to apply such review. See ORS 19.415(3)(b) (stating that we have discretion to apply de novo review in equitable actions); ORAP 5.40(8)(c) (stating that we will exercise that discretion only in exceptional cases). Accordingly, because we decline to review the facts de novo , we are bound by a trial court's findings of historical fact if there is any evidence in the record to support them. Berg and Berg , 250 Or App 1, 2, 279 P.3d 286 (2012). "[T]he trial court's award will be upheld if, given the findings of the trial court that are supported by the record, the court's determination that an award of support is 'just and equitable' represents a choice among legally correct alternatives." Id.

Wife sought an award of $ 2,000 per month in indefinite spousal support and a requirement for husband to maintain $ 300,000 in life insurance naming wife as the beneficiary for as long as he had an obligation to pay spousal support. The court awarded wife $ 1,050 per month in transitional support for 12 years and made no life insurance award. Over the course of the proceedings, the court made the following findings relevant to the issue of spousal support:

"[Wife] is 47 years of age and husband is 48 years of age. Both of the parties are in apparent good health with no health problems sufficient to keep them from being fully and gainfully employed. The parties were married in 1984 when she was 19 and he was 21. She did not graduate from high school. The parties have two adult children. [Wife] has been a homemaker with some employment, usually at unskilled labor jobs. [Wife] has not had significant employment in a number of years and this Court finds she is underemployed. Husband has been steadily employed since the time of the marriage now working for Ford Motor Company for the last 22 years as a warehouse supervisor."
"The Court would indicate that, as stated in the original letter, this Court believes [wife] is underemployed. She has made no significant effort to find employment or to otherwise offset the parties' debt during the entire time of this dissolution of marriage case."
"[Husband]'s spousal support was and always has been transitional support and is NOT maintenance support."[ ]
"The Court's intention was [husband] would pay support until his age 60 to allow him to retire shortly thereafter and no longer be paying spousal support. * * * [He] should be paying transitional support to [wife] to allow her the opportunity to develop some income-generating skills of her own and to transition to that situation over a long period of time."

The court found the following on the issue of life insurance:

"[Wife] has asked for a $ 300,000.00 life insurance policy to guarantee the payment of spousal support to her from [husband], but has not provided the Court with the cost of that policy, or any information except a number. * * *. Given the significant debt of the parties, this Court declines * * * to require [husband] to provide life insurance, in any amount, without further information. [Wife] is invited to provide that information to the Court * * *."

On appeal, wife argues that the trial court's spousal support award was not "just and equitable" as required by ORS 107.105(1)(d), given the length of the marriage and the disparity in the parties' incomes and earning capacities. She also challenges the court's failure to require husband to secure his spousal support obligation with a life insurance policy.

We review for abuse of discretion the trial court's conclusions regarding spousal support and life insurance awards and will not disturb a trial court's determination unless the court misapplied the statutory and equitable considerations required by the statute permitting these awards. Mitchell and Mitchell , 271 Or App 800, 811, 353 P.3d 28 (2015). The general rule is that the amount of a support award is not justified if it is "outside" the "range of reasonableness by a significant enough margin so as not to be just and equitable in the totality of pertinent circumstances." Cullen and Cullen , 223 Or App 183, 194, 194 P.3d 866 (2008) (citation and internal quotation marks omitted).

A court in a dissolution proceeding may order "spousal support, an amount of money for a period of time as may be just and equitable for one party to contribute to the other, in gross or in installments or both." ORS 107.105(1)(d). As part of a spousal support determination, a court "shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision." ORS 107.105(1)(d) (emphasis added).

Spousal maintenance support is one category of spousal support, and its purpose is to "allow[ ] one financially able spouse to contribute to the support of the other, depending on the financial needs and resources of each party." Abrams and Abrams , 243 Or App 203, 207, 259 P.3d 92, rev den , 350 Or. 716, 260 P.3d 493 (2011). In long-term marriages, like the one here, "the primary goal of spousal support is to provide a standard of living to both spouses that is roughly comparable to the one enjoyed during the marriage." Id. ; see also Snyder and Snyder , 102 Or App 41, 44-45, 792 P.2d 478 (1990) ("[I]n marriages of long duration, where the parties have disparate earning capacities, permanent spousal support is necessary to avoid an overly disproportionate impact on the disadvantaged spouse."). The court may award maintenance support "for a specified or an indefinite period." ORS 107.105(1)(d)(C). In determining whether to award maintenance support, the factors to be considered by the court include the duration of the marriage, the age of the parties, the health of the parties, the standard of living established during the marriage, the relative income and earning capacity of the parties, a party's training and employment skills, a party's work experience, the financial needs and resources of each party, the tax consequences to each party, a party's custodial and child support responsibilities, and any other factors the court deems just and equitable. Id.

Here, the court failed to explain or make a record of its reasoning for denying maintenance support. See Olson and Olson , 218 Or App 1, 15, 178 P.3d 272 (2008) (explaining that a trial court must provide some explanation reflecting a proper exercise of its discretion and that the explanation "must comport with the applicable legal framework and describe the basic reasons for the decision"). Indeed, the only explanation the court offered regarding maintenance support is that the award was "NOT maintenance support." Because the court failed to make a record showing that it properly exercised its discretion, the court erred as a matter of law. See id .

Moreover, the court failed to properly consider all of the relevant factors in its decision to deny maintenance support. See Abrams , 243 Or App at 208, 259 P.3d 92 ("In determining the amount and duration of support, the court must consider the factors outlined in the statute * * *."). The court noted the age, health, and employment history of the parties and the duration of the marriage and also found that wife is "underemployed" and "has made no significant effort to find employment." However, significantly, the court failed to consider the standard of living established during the marriage, the relative income and earning capacity of the parties, the financial needs of the parties, or any other factors the court deemed just and equitable. See ORS 107.105(1)(d)(C)(iv), (v), (viii), (xi). The purpose of maintenance support is to "provide a standard of living to both spouses that is roughly comparable to the one enjoyed during the marriage." Abrams , 243 Or App at 207, 259 P.3d 92. Therefore, the very factors that the court failed to consider in this case are the factors that may be the most fundamental in a court's assessment of whether to award a party spousal maintenance support. Here, neither party disputes that a disparity exists between husband's and wife's present incomes and future earning capacities. Husband has a steady job. Wife's limited career advancement, level of education, and minimal work experience were occasioned by her extended absence from the workforce during the marriage so that she could stay at home to raise the children. Therefore, we reverse and remand for the trial court to reconsider all of the relevant factors in determining whether to award spousal maintenance support. See Mitchell , 271 Or App at 813, 353 P.3d 28 (reversing and remanding to reconsider the spousal maintenance support award after the trial court erred in failing to consider the financial needs and resources of each party).

Transitional spousal support is another category of spousal support, and it "is typically awarded when one spouse has been out of the workforce for an extended period of time and needs education or on-the-job training to prepare for reentry into the job market." Stuart and Ely , 259 Or App 175, 180, 313 P.3d 317 (2013) (citation and internal quotation marks omitted). The factors the court should consider in determining whether to award transitional support include the duration of the marriage, a party's training and employment skills, a party's work experience, the financial needs and resources of each party, the tax consequences to each party, a party's custodial and child support responsibilities, and any other factors the court deems just and equitable. ORS 107.105(1)(d)(A).

Here, the court's findings are not sufficient to support its decision to award transitional support in the amount of $ 1,050 per month for 12 years. The court's sole basis to support its decision regarding the amount and duration of transitional support was "to allow [husband] to retire shortly thereafter and no longer * * * pay[ ] spousal support" and "to allow [wife] the opportunity to develop some income-generating skills of her own and to transition to that situation over a long period of time." However, there is no evidence of when husband will actually retire. It is inappropriate to base an award of transitional spousal support for "a period of time that is defined by a contingency the occurrence of which is a matter of mere speculation." Harris and Harris , 142 Or App 427, 431, 921 P.2d 1329 (1996). Retirement is an example of such a contingency. See id. at 431-32, 921 P.2d 1329 (explaining that the duration of a spousal support award cannot be tied to obligor spouse's eventual retirement in the absence of evidence regarding when retirement will occur and what the financial consequence of retirement will be); McDonough and McDonough , 141 Or App 116, 120-21, 917 P.2d 36 (1996) (same); see also Gagnepain and Gagnepain , 113 Or App 56, 59, 831 P.2d 67 (1992) (deciding that terminating spousal support automatically upon retirement was improper because "there was no evidence that husband plans to retire immediately or any indication of when he does plan to retire"). While we first explained this principle in cases where we exercised then-mandatory de novo review, the principle continues to apply under the current discretionary standard. See DeAngeles and DeAngeles , 273 Or App 88, 96, 359 P.3d 371 (2015) (citing Harris , 142 Or App at 431, 921 P.2d 1329, as "our case law concerning the efficacy of basing the duration of a spousal support award on a speculative contingency"). Therefore, the court's decision was error.

Additionally, nothing in the record provides an evidentiary basis for a nexus between the duration of transitional support ordered (12 years) and the two and a half years that wife testified it will take her to retrain. We therefore reverse and remand for the trial court to consider the appropriate factors and make an appropriate record, in determining transitional support.

We turn to wife's challenge to the court's failure to order husband to carry life insurance naming wife as beneficiary until husband's spousal support obligation is fulfilled.

As with a spousal support award, the court must explain its findings for awards of life insurance. See Mitchell , 271 Or App at 816, 353 P.3d 28 (reversing and remanding for reconsideration of the portion of the judgment relating to spousal maintenance support and life insurance where "[t]he court offered no explanation of how it chose the amount of life insurance that husband was ordered to maintain, or why it denied husband's request to reduce the required amount as he paid his obligations, and nothing in the record provide[d] an evidentiary basis for those decisions"). Further, and also like support awards, the court's findings must have a basis in the law. See Justice and Crum , 265 Or App 635, 642, 337 P.3d 840 (2014) (remanding for reconsideration a transitional support award where the trial court's explanation for denying the award was that the request lacked a "specific plan" where we could find no statutory basis and the court cited no authority for the proposition). In the present case, the only explanation the trial court provided for not ordering husband to purchase a life insurance policy was that wife did not provide the court with the cost of the policy or "any information except a number" and the parties' "significant debt." However, we are not aware of, and the court did not supply any, statutory authority to deny life insurance on those bases. Furthermore, we do not understand how the parties' debt (which the court divided between them) justifies not securing a spousal support obligation. See ORS 107.810 ("It is the policy of the State of Oregon to encourage persons obligated to support other persons as the result of a dissolution * * * to obtain or to cooperate in the obtaining of life insurance adequate to provide for the continued support of those persons in the event of the obligor's death."). We therefore remand to the trial court to reconsider and articulate its findings regarding the adequate amount of life insurance.

Reversed and remanded for reconsideration of spousal support and life insurance awards; otherwise affirmed.

      The uncontested facts indicate that wife stayed home to raise their children by the parties' mutual agreement.

      There were several letter opinions and supplemental judgments entered in this case. One judgment included maintenance support. A subsequent judgment excluded maintenance support, providing only the explanation indicated in this quotation.

      The record indicates that if husband retains his current job, he will be eligible to retire in 12 years.

      Our standard of review was controlled by a prior version of ORS 19.415(3), which required de novo review of domestic relations cases.

      ORS 107.820(2) provides:
      "If the party ordered to pay support or a share of a pension or retirement plan has no life insurance policy naming as beneficiary the party ordered to receive either support or a share of a pension or retirement plan, or if an existing policy is inadequate to cover the obligation, the court in a judgment may order that the party ordered to pay shall purchase a life insurance policy naming as beneficiary the party ordered to receive the support or a share of a pension or retirement plan and that the obligated party shall pay premiums on the policy and keep the policy in force until the obligation ends. The obligated spouse has the option of obtaining a nonreducing term life insurance policy or any other type of policy in lieu of using existing policies."


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Johnny Lee SNYDER, Defendant-Appellant.
    A163803
    Court of Appeals of Oregon.
    Submitted October 18, 2018. August 7, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Defendant appeals from a judgment of conviction for one count of possession of methamphetamine and one count of felon in possession of a firearm. On appeal, defendant challenges only his conviction for felon in possession of a firearm. On that count, the trial court sentenced defendant to, among other terms, 48 months in prison and two years of post-prison supervision (PPS). We write to address only defendant's third assignment of error to the PPS term. We reject defendant's remaining assignments of error without discussion.

With regard to the PPS term, defendant argues that the trial court erred by imposing a term of PPS that, when added to the term of imprisonment, exceeds the statutory maximum for the offense. Defendant acknowledges that he did not preserve the assignment of error and requests that we exercise our discretion to correct the error as plain error. See ORAP 5.45(1) ; Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991). The state concedes that the trial court plainly erred and that we should remand for resentencing. We agree, accept the state's concession, and exercise our discretion to correct the error.

OAR 213-005-0002(4) provides, in part, that "[t]he term of [PPS], when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction." In this case, the jury found defendant guilty of a Class C felony, ORS 166.270(5) ("Felon in possession of a firearm is a Class C felony."), which has a maximum indeterminate sentence of five years or 60 months, ORS 161.605(3). The sentenced imposed by the trial court-48 months' imprisonment and two years' PPS-exceeds that maximum penalty. Thus, the trial court plainly erred in entering that sentence. See, e.g. , State v. Carter , 272 Or. App. 161, 354 P.3d 764 (2015) (correcting an excessive sentence under OAR 213-005-0002(4) as plain error). In addition, for the reasons stated in State v. Ramos , 254 Or. App. 748, 749, 295 P.3d 176 (2013), we conclude that it is appropriate to exercise our discretion and correct the error in this case.

Remanded for resentencing; otherwise affirmed.


text:
    Linda Jean PREBLE, Plaintiff-Appellant, v. CENTENNIAL SCHOOL DISTRICT NO. 287, a Portland Oregon School District, Defendant-Respondent.
    A163950
    Court of Appeals of Oregon.
    Argued and submitted November 28, 2018. June 26, 2019
    Julene M. Quinn, Albany, argued the cause and filed the briefs for appellant.
    Blake H. Fry, Portland, argued the cause for respondent. Also on the brief was Karen M. Vickers and Mersereau Shannon LLP.
    Theodore P. Heus and Preston Bunnell, LLP, filed the brief amicus curiae for Oregon Trial Lawyers Association.
    David L. Runner filed the brief amicus curiae for SAIF Corporation, Timber Products Company, and BDI Staffing.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and Landau, Senior Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   LANDAU, S. J.

Held The question in this case is which of two statutes of limitations applies to plaintiff's personal injury claim against a public employer. On the one hand, ORS 30.275(9) provides that "[n]otwithstanding any other *** statute providing a limitation on the commencement of an action," a tort action against a public body must be filed within two years after the alleged loss or injury. On the other hand, ORS 656.019(2)(a) provides that, "notwithstanding any other statute of limitation," a claim against an employer-including a public employer-must be filed within 180 days after an unsuccessful workers' compensation claim against the public employer has become final, even if that is more than two years after the alleged loss or injury. In this case, plaintiff filed her personal injury claim within 180 days of the date her unsuccessful workers' compensation claim became final, but more than two years after the injury. So, depending on which statute of limitations applies, her claim may or may not have been timely filed.

The trial court concluded that plaintiff's claim is time-barred, because the two-year limitation period in ORS 30.275(9) applies. The trial court therefore dismissed plaintiff's claim. For the reasons that follow, we conclude that the trial court erred and that plaintiff's claim is not time-barred, because the more generous limitation period in ORS 656.019(2)(a) applies. Accordingly, we reverse and remand.

As this case was disposed of on a motion to dismiss, we take the facts based on the allegations of the complaint and draw all inferences in favor of plaintiff. See Rice v. Rabb , 354 Or. 721, 723, 320 P.3d 554 (2014) (stating standard of review). Plaintiff worked as an educational assistant for defendant, a public school district. On November 8, 2013, a child riding a scooter crashed into plaintiff, injuring plaintiff's knee. Plaintiff filed a workers' compensation claim for the work-related injury to her knee. Defendant denied the claim on the ground that hers was a combined condition resulting from the scooter accident in conjunction with a long-term degenerative knee condition, and the scooter accident that occurred at work was not the major contributing cause of the resulting combined condition. See ORS 656.005 (7)(a)(B) (a combined injury is compensable only if the compensable injury is the "major contributing cause"). Plaintiff requested a hearing at which she offered expert testimony that the work-related scooter accident was the major contributing cause of her condition. The Workers' Compensation Board (board) ultimately found that plaintiff's evidence was not as persuasive as defendant's. On October 30, 2015, the board upheld defendant's denial because the work-related scooter accident was not the major contributing cause of her combined condition.

On March 31, 2016, plaintiff filed a complaint for negligence against defendant for damages resulting from the scooter accident at work. It is undisputed that plaintiff filed that complaint within 180 days of the board's denial of her claim, but more than two years from the date of her injury. Plaintiff alleged in her complaint that the action had been timely commenced under ORS 656.019 (2)(a). Defendant responded with a motion to dismiss on the ground that the action was time barred. According to defendant, the two-year limitation period in ORS 30.275(9) -not the longer limitation period of ORS 656.019(2)(a) -controls. The trial court agreed with defendant and dismissed the complaint.

On appeal, plaintiff argues that the trial court erred in granting defendant's motion to dismiss. She contends that the longer limitation period of ORS 656.019(2)(a) controls. She acknowledges that, at least on the surface, both that statute and ORS 30.275(9) appear to apply; both purport to apply "notwithstanding" any other statute of limitations. In light of that apparently irreconcilable conflict between the two statutes of limitations, plaintiff argues that ORS 656.019(2)(a) controls because it is both the more particular provision and the one more recently enacted.

Defendant insists that ORS 30.275(9) controls. According to defendant ORS 30.275(9) clearly states that, subject to exceptions that do not apply to this case, the two-year limitation period applies "notwithstanding any other statute of limitations." Defendant argues that, because ORS 656.019(2)(a) is another statute of limitations and is not among the listed exceptions to the two-year limitation period of ORS 30.275(9), the two-year limitation period supersedes the longer period stated in ORS 656.019(2)(a).

Defendant acknowledges that ORS 656.019(2)(a) includes its own "notwithstanding" provision. It nevertheless insists that the clause does not apply. Defendant reasons that ORS 30.275(9) is a part of the Oregon Tort Claims Act, which acts as a waiver of the sovereign immunity of the state and its political subdivisions. That waiver includes only a two-year statute of limitations. Any departure from that waiver, defendant argues, must be clearly stated in the wording of a statute. ORS 656.019(2)(a) says nothing about waiving sovereign immunity. Therefore, defendant concludes, it cannot apply to extend the limitation period beyond what is provided in the Oregon Tort Claims Act.

Plaintiff replies that the "notwithstanding" clause of ORS 30.275(9) applies only to "any other statute of limitations." According to plaintiff, ORS 656.019(2)(a) may be understood to operate not as a statute of limitations, but rather as an extension of a statute of limitations. Thus, by its own terms, ORS 30.275(9) does not apply.

Thus framed, the parties' dispute is one of statutory construction, governed by familiar rules set out in State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009), and PGE v. Bureau of Labor and Industries , 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Those rules require that we attempt to discern the meaning and application of the relevant statutes most likely intended by the legislatures that enacted them.

We begin with the wording of the relevant statutes. ORS 30.275(9) provides:

"Except as provided in ORS 12.120, 12.135 and 659A.875, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body *** shall be commenced within two years after the alleged loss or injury."

(Emphases added.) The provision is part of the Oregon Tort Claims Act, originally enacted in the 1960s as a partial waiver of sovereign immunity. See generally Krieger v. Just , 319 Or. 328, 333-34, 876 P.2d 754 (1994). The specific wording of ORS 30.275(9) was enacted in 1981. Or. Laws 1981, ch. 350, § 1. Before then, ORS 30.275 required all actions against public bodies to be brought within two years of the date of injury and that plaintiffs comply with strict formal notice requirements. ORS 30.275 (1979). The notice requirements, however, proved to be too onerous, prompting the introduction in 1981 of a bill to repeal ORS 30.275 in its entirety. See Baker v. City of Lakeside , 343 Or. 70, 78, 164 P.3d 259 (2007). A compromise ultimately was reached, resulting in the current wording of the provision. Id. Unfortunately, the legislative history does not make clear where the "notwithstanding" clause originated. Id. at 81, 164 P.3d 259. But, in Baker , 343 Or. at 81-82, 164 P.3d 259, the Supreme Court concluded that the clause tracked concerns that there be a uniform two-year limitation period that applies to actions brought under the Oregon Tort Claims Act.

ORS 656.019 provides:

"(1)(a) An injured worker may pursue a civil negligence action for a work-related injury that has been determined to be not compensable because the worker has failed to establish that work-related incident was the major contributing cause of the worker's injury only after an order determining that the claim is not compensable has become final.
"(b) Nothing in this subsection grants a right for a person to pursue a civil negligence action that does not other-wise exist in law.
"(2)(a) Notwithstanding any other statute of limitation provided in law, a civil negligence action against an employer that arises because a workers' compensation claim has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker's injury must be commenced within the later of two years from the date of injury or 180 days from the date of the order affirming that the claim is not compensable on such grounds becomes final."

(Emphases added.) That statute was enacted in 2001, as a response to a then-recent Oregon Supreme Court decision, Smothers v. Gresham Transfer, Inc. , 332 Or. 83, 23 P.3d 333 (2001), overruled by Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016) ; see also Hudjohn v. S & G Machinery Co. , 200 Or. App. 340, 346 n. 3, 114 P.3d 1141 (2005) (noting that the legislature enacted ORS 656.019 "in response to the Supreme Court's holding in Smothers "). At issue in Smothers was the constitutionality of a provision of the workers' compensation statutes declaring that an injured worker's exclusive remedy for on-the-job injuries lay in the administrative workers' compensation system. The court held that, because the workers' compensation statutes imposed a heightened causation standard beyond what common-law negligence required, the exclusive remedy requirement deprived workers of a right to that common-law remedy, in violation of the remedy guarantee of Article I, section 10, of the Oregon Constitution. 332 Or. at 86, 23 P.3d 333.

In response to Smothers , the legislature in 2001 enacted ORS 656.019. Section (1) of the law provides that the exclusive remedy requirement no longer applies if a claim is not compensable because of the heightened causation requirement under the workers' compensation law. If a worker's claim has been denied because of a failure to satisfy that causation standard, the law provides that the worker may "pursue a civil negligence action" for that work-related injury. Section (2) then provides that, "[n]otwithstanding any other statute of limitation provided in law," such a civil negligence action must be commenced within the later of either two years from the date of the worker's injury or 180 days from the date of the order denying the workers' compensation claim.

As we have noted, on the face of those statutes, there appears to be a conflict. ORS 30.275(9) provides that, "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," a civil action against a public body must be brought within two years of the date of injury. And ORS 656.019 (2)(a) provides that "[n ]otwithstanding any other statute of limitation provided in law ," civil negligence actions following the denial of certain workers' compensation claims must be brought within the later of two years from the date of injury or 180 days from the date the claim was denied.

When confronted with multiple statutes that appear to conflict, courts are obliged to engage in a two-part analysis. First, they must determine whether there is any way to reconcile the apparent conflict without exceeding the bounds of the reasonable construction of the wording of the statutes. See, e.g ., Powers v. Quigley , 345 Or. 432, 438, 198 P.3d 919 (2008) ("[W]hen multiple statutory provisions are at issue in a case, this court, if possible, must construe those statutes in a manner that will give effect to all of them.") (Internal quotation marks omitted.); State v. Guzek , 322 Or. 245, 268, 906 P.2d 272 (1995) ("[W]hen one statute deals with a subject in general terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, while giving effect to a consistent legislative policy."). Second, if such harmonizing is not possible, then the courts must apply established rules of construction that give precedence to one of the conflicting statutes over the other. See, e.g ., State ex rel Juv. Dept. v. M. T. , 321 Or. 419, 426, 899 P.2d 1192 (1995) ("When a general statute and a specific statute both purport to control an area, this court considers the specific statute to take precedence over an inconsistent general statute related to the same subject.").

In this case, each party offers a way to harmonize the apparent conflict between the two seemingly applicable statutes of limitations. Plaintiff argues that the way to reconcile the two is to understand that ORS 656.019(2)(a) is not actually a statute of limitations, so the notwithstanding any "statute providing a limitation" clause of ORS 30.275(9) does not apply. Plaintiff claims support for that argument in the Oregon Supreme Court's decision in Baker . We are not persuaded.

At issue in Baker was whether the statute that determines when an action commences applies to an action brought against a public body. An employee of the city of Lakeside injured the plaintiff on August 31, 2002. The plaintiff filed a complaint against the city on August 27, 2004, less than two years from the date of the injury. But she did not serve the summons on the defendant until four weeks later, more than two years from the date of the injury. The city argued that the action was time-barred under ORS 30.275(9). The plaintiff argued that her action was timely under ORS 12.020(2), which provides that an action commences on the date the complaint was filed so long as the summons was served within 60 days. The city responded that ORS 12.020(2) did not apply, because of the notwithstanding clause of ORS 30.075(9). 343 Or. at 72, 74, 164 P.3d 259.

The Supreme Court rejected that argument, explaining that ORS 30.275(9) is "devoted exclusively to stating the limitations period for tort claims against public bodies." Id . at 76, 164 P.3d 259. When an action is commenced, the court explained, is "a completely different issue" from specifying a limitation period. Id. Accordingly, the court held, ORS 12.020(2) is not a provision of ORS chapter 12 that is subject to the notwithstanding clause of ORS 30.275(9). Id. at 83, 164 P.3d 259.

In this case, ORS 656.019(2)(a) does not address a "completely different issue" from stating a limitation period. To the contrary, it specifies the time limit within which an action must be brought: the later of two years or 180 days from the denial of the workers' compensation claim. That is a statute of limitations. See Black's Law Dictionary 1636 (10th ed. 2014) (defining "statute of limitations" as "[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered)").

Defendant offers two arguments as to why we need not concern ourselves with the conflict between the two statutes of limitations. First, defendant asserts that the Oregon Supreme Court has already addressed the matter in its favor in Baker . Defendant is mistaken. Baker did not begin to address the matter at issue in this case. As we have noted, the sole issue was whether ORS 12.020(2) was subject to the notwithstanding provision of ORS 30.275(9). There was no mention of ORS 656.019(2)(a). In the course of its description of the legislative history of ORS 30.275(9), the court did observe that there was an implication that the drafters intended to clarify that, other than the two statutes explicitly mentioned, "no other exception to the general two-year statute of limitations existed." 343 Or. at 82, 164 P.3d 259. It bears some emphasis that the court was not making any broad pronouncements about the scope of ORS 30.275(9), but characterizing a possible implication of the legislative history of the 1981 amendments. Id . at 82-83, 164 P.3d 259. All the court inferred from that history was that the framers of the amendments believed "no other exception to the general two-year statute of limitations existed ," at the time of those amendments. Id. at 82, 164 P.3d 259 (emphasis added). Neither the legislative history of the 1981 amendments nor the court's analysis of it in Baker addressed whether the legislature might create additional exceptions at a later date . That is precisely the question at issue in this case.

Second, defendant argues that sovereign immunity bars the application of ORS 656.019(2)(a) as a matter of law. According to defendant, ORS 30.275(9) is part of the Oregon Tort Claims Act's partial waiver of sovereign immunity. As a rule, defendant contends, waivers of sovereign immunity may not be implied, but must be clearly stated in the terms of a statute. In this case, nothing in ORS 656.019 (2)(a) clearly states a legislative intention to extend the immunity of public bodies beyond the two-year limitation period in ORS 30.275(9). So, defendant concludes, ORS 656.019(2)(a) cannot apply. We reject that argument as well.

We accept defendant's basic premise that waivers of sovereign immunity are not to be lightly inferred. As the Oregon Supreme Court said in Newport Church of the Nazarene v. Hensley , 335 Or. 1, 17, 56 P.3d 386 (2002), "[o]nly clear expression by the legislature waives the state's sovereign immunity." In that case, the question was whether the general rate of interest statute applied to claims against the state. The court said no, given that the statute contained no wording referring to its applicability to public bodies. Id . at 4, 17-18, 56 P.3d 386.

That is not so in this case. The Oregon legislature has explicitly stated that the provisions of ORS chapter 656 apply to public bodies. ORS 656.023 provides that "[e]very employer employing one or more subject workers in the state is subject to this chapter." The law then provides, in ORS 656.005(13)(a), that the term "employer" as used in chapter 656, means "any person, including receiver, administrator, executor or trustee, and the state, state agencies, counties, municipal corporations, school districts and other public corporations or political subdivisions, who contracts to pay a remuneration for and secures the right to direct and control the services of any person." Thus, when ORS 656.019(2)(a) states a limitation period that applies to actions against an "employer," that expressly includes public employers.

Confirming that reading of the statute is the fact that ORS 656.019(2)(a) provides that the additional 180-day period to commence an action against an employer applies notwithstanding "any other statute of limitation provided in law." (Emphasis added.) Ordinarily, courts assume that the legislature's use of the word "any" indicates deliberately comprehensive application. See, e.g ., State v. Hamilton , 348 Or. 371, 378, 233 P.3d 432 (2010) (statutory reference to "any" person "demonstrates that the legislature deliberately chose not to limit the reach" of the statute); Crocker and Crocker , 332 Or. 42, 51, 22 P.3d 759 (2001) ("The word 'any' ordinarily would have a very broad sweep."); Dickinson v. Leer , 255 Or. 274, 276, 465 P.2d 885 (1970) (statutory reference to "any" business in Oregon suggests the statute applies in "an unrestricted and comprehensive sense to include every legitimate business transaction, regardless of its nature"). Presumably, the legislature was aware of ORS 30.275(9) when it declared that the 180-day extension applied notwithstanding "any" other limitation period. It follows that the notwithstanding provision of ORS 656.019(2)(a) applies to ORS 30.275(9).

We are left, then, with irreconcilably conflicting statutes. As we have noted, in such cases, courts are forced to pick one of the statutes to take precedence over the other. Courts commonly apply either of two rules to determine which statute takes precedence. First, the courts will assume that the more specific of conflicting statutes will take precedence over a more general one. See, e.g ., Fairbanks v. Bureau of Labor and Industries , 323 Or. 88, 913 P.2d 703 (1996). ("If the two statutes cannot be harmonized, * * * the specific statute is considered to be an exception to the general statute.")

(Citation and internal quotation marks omitted.); see also ORS 174.020(2) ("When a general provision and a particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent.").

Determining which among conflicting statutes is the more particular can be tricky. As this court explained in Oregonians for Sound Economic Policy v. SAIF , 187 Or. App. 621, 631, 69 P.3d 742, rev. den. , 336 Or. 60, 77 P.3d 635 (2003),

"the rule that, in cases of conflict, specific statutory provisions control over general ones can produce different results depending on which statute is characterized as the specific and which as the general. The problem is that, in many cases, the same statutes may be characterized as specific or general depending on which features the court chooses to emphasize."

In this case, though, we readily conclude that, as between ORS 30.275(9) and ORS 656.019(2)(a), the latter is the more specific. The former statute applies to any claim asserted against any public body. The latter applies only to workers' compensation claims. Moreover, it applies only to a very specific type of workers' compensation claim, namely, one that was denied because of the claimant's failure to satisfy the statutory major contributing cause standard. Thus, the longer limitation period of ORS 656.019(2)(a) must take precedence over the shorter two-year period in ORS 30.275(9).

The second rule that may apply to conflicting statutes yields the same result. If one applicable statute irreconcilably conflicts with another, courts generally give precedence to the later-enacted one. State v. Vedder , 206 Or. App. 424, 430, 136 P.3d 1128 (2006), rev. den. , 342 Or. 417, 154 P.3d 723 (2007) ("If earlier and later statutes are in irreconcilable conflict, then the earlier must yield to the later."). The rationale is that the legislature presumably was aware of the preexisting statute and must have impliedly repealed it to the extent of the inconsistency. See, e.g. , Buehler v. Rosenblum , 354 Or. 318, 325, 311 P.3d 882 (2013) (in case of conflict among statutes "the earlier must yield to the later by implied repeal") (citation and internal quotation marks omitted);

State v. Shumway , 291 Or. 153, 160, 630 P.2d 796 (1981) ("[W]hen the legislature enacts a subsequent statute which is repugnant to or in conflict with a prior statute, but contains no language expressly repealing the prior statute, the prior statute is impliedly repealed.").

In this case, there is no dispute that ORS 656.019 (2)(a) was the later-enacted statute; it was enacted some 20 years after ORS 30.275(9). Accordingly, the longer limitation period in the former statute must take precedence over the latter. It is undisputed that, if ORS 656.019(2)(a) controls, plaintiff's claim was timely commenced.

Defendant argues that, even if the trial court erred in concluding that plaintiff's claim is time-barred, we should affirm on the alternate ground that ORS 656.019(1) did not authorize her to file the claim in the first place. According to defendant, ORS 656.019(1) applies only to cases in which a plaintiff "failed to carry the burden" of proving the compensability of the workers' compensation claim. In this case, defendant argues, because the claim was one for a combined condition, claimant did not bear the burden of proof; it was instead defendant who bore the burden of establishing that work was not the major contributing cause of the condition. Therefore, defendant concludes, the statute does not apply, and plaintiff lacked statutory authority to bring her claim wholly apart from any issue of timeliness. Cited in support of the argument is this court's decision in Alcutt v. Adams Family Food Services, Inc. , 258 Or. App. 767, 311 P.3d 959 (2013), rev. den. , 355 Or. 142, 326 P.3d 1207 (2014).

Plaintiff responds that defendant is raising that issue for the first time on appeal. In any event, she argues that the sole issue before the trial court was the timeliness of her claim, not whether her complaint stated a claim. She also asserts that the applicability of ORS 656.019(1) does not turn on the issue of burden of proof; the statute, she notes, says nothing about burdens of proof, only who ultimately prevails on a workers' compensation claim. Alcutt , she contends, is not to the contrary, but rather is distinguishable on its facts.

We need not address whether ORS 656.019(1) authorized plaintiff's claim, because that issue was not raised below and may not be raised for the first time on appeal. Instructive in that regard is this court's decision in Rogers v. Valley Bronze of Oregon, Inc ., 178 Or. App. 64, 66-69, 35 P.3d 1102 (2001). In that case, the plaintiff had initiated a personal injury action against his employer for workplace injuries. The employer moved to dismiss under the exclusive remedy provision of the workers' compensation statute. The trial court granted the motion. In the meantime, the Oregon Supreme Court issued its decision in Smothers . On appeal, this court concluded that Smothers controlled and that the trial court had erred in dismissing the plaintiff's action. The defendant then argued for the first time on appeal that the trial court's dismissal could be affirmed on the ground that the plaintiff had failed to state a claim, in that he had not alleged that he had failed to exhaust all possible levels of review through the workers' compensation system before filing his complaint. This court declined to entertain the defendant's argument, explaining that a motion to dismiss for failure to state a claim under ORCP 21 A(8) may not be asserted for the first time on appeal. See also State ex rel. Osborne v. Cook , 185 Or. App. 317, 325, 59 P.3d 531 (2002) (argument that is the "functional equivalent of a motion to dismiss for failure to state a claim will" not be considered for the first time on appeal as an alternate basis for affirmance).

The same reasoning applies to this case. Defendant's sole ground for moving to dismiss plaintiff's claim was the timeliness of the claim under ORCP 21 A(9). There was no mention of ORCP 21 A(8), ORS 656.019(1), Alcutt , or the argument that is now being asserted for the first time before this court. We decline to address defendant's alternative argument for affirmance.

We therefore conclude that the trial court erred in granting defendant's motion to dismiss on statute of limitations grounds.

Reversed and remanded.

      ORS 12.120 sets a limitation period for libel and slander actions; ORS 12.135 applies to actions for damages from construction, alteration, or repair of improvement to real property; and ORS 659A.875 applies to actions for unlawful employment practices.