State v. Hilburn ( 2019 )

48
Submitted November 5, 2018; reversed and remanded for resentencing,
otherwise affirmed December 4, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
DONALD GEAN HILBURN,
Defendant-Appellant.
Marion County Circuit Court
17CR11850; A165875
455 P3d 995
Defendant pleaded guilty to sexually abusing J, a child under the age of
14. The sentencing court imposed $2,429.94 in restitution for medical expenses
incurred by J as a result of defendant’s crimes. Defendant appeals that award,
contending that, under State v. McClelland, 278 Or App 138, 372 P3d 614, rev den,
360 Or 423 (2016), there is insufficient evidence to support a finding that the
claimed medical expenses were reasonable. The state argues that, because there
is evidence that the medical expenses were paid at discounted rates, it is infer-
able that those expenses were reasonable. Held: The trial court erred in award-
ing restitution because none of the state’s evidence showed how the amounts paid
for J’s medical expenses corresponded to market rates. See State v. J. M. E., 299
Or App 483, 487, 451 P3d 1018 (2019).
Reversed and remanded for resentencing; otherwise affirmed.
Thomas M. Hart, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Haselton, Senior Judge.
LAGESEN, P. J.
Reversed and remanded for resentencing; otherwise
affirmed.
Cite as 301 Or App 48 (2019) 49
LAGESEN, P. J.
Defendant sexually abused J, a child under the age
of 14. For that conduct, he was convicted, pursuant to a guilty
plea, of one count of second-degree sodomy, ORS 163.395,
and two counts of first-degree sexual abuse, ORS 163.427.
The sentencing court imposed $2,429.94 in restitution—
$2,000.56 payable to Willamette Valley Community Health
(WVCH) and $429.38 payable to the Department of Human
Services (DHS)—for amounts those entities had paid to
cover medical expenses incurred by J as a result of defen-
dant’s crimes. On appeal, defendant challenges the award of
restitution for the medical expenses, contending that, under
State v. McClelland, 278 Or App 138, 372 P3d 614, rev den,
360 Or 423 (2016), there is insufficient evidence to support a
finding that the claimed medical expenses were reasonable.
On review for legal error, State v. Campbell, 296 Or App 22,
26, 438 P3d 448 (2019), we reverse.
The relevant historical and procedural facts are not
disputed. In support of the claim for restitution, the state
introduced evidence (in the form of records and testimony)
of the amounts that the providers billed for the medical ser-
vices at issue, and the amounts that WVCH and DHS paid
for those services. That evidence reflects that the amounts
that WVCH and DHS paid the providers were less—
significantly so, in some instances—than what the provid-
ers had billed. Although the state called witnesses from both
DHS and WVCH to testify about the payments for which
restitution was sought, and those witnesses testified about
the services covered by those payments, the state elicited no
testimony addressing how the amounts paid related to the
customary market rates for the prescription and medical
services covered by those payments.
Following the close of the evidence, defendant
argued that the state’s evidence was insufficient under
McClelland to establish that the claimed medical expenses
were reasonable. The trial court rejected that argument.
With respect to the charges paid by WVCH, the court noted
that the exhibit reflected that WVCH paid for medical ser-
vices at a discounted “contract amount” that the court deter-
mined was “reasonable within the circumstances.” The court
50 State v. Hilburn
reached a similar conclusion regarding the amounts paid
by DHS, observing that they were less than the amounts
billed. On appeal, defendant reiterates his contention that
the evidence presented was insufficient to support a find-
ing that the amounts paid for the victim’s medical expenses
were reasonable, as required under McClelland.
When the state seeks restitution for amounts paid
for medical charges, it must prove that the charges were
reasonable. ORS 137.103(2); ORS 31.710; McClelland, 278
Or App at 143-44. As we recently explained in Campbell—
decided after the trial court ruled in this case—a medical
charge is reasonable if it is at (or below) the market rate for
the services, drugs, or other medical items provided: “[T]he
market rate is a reasonable amount for a victim to recover for
medical expenses.” 296 Or App at 30. Medical bills, stand-
ing alone, are insufficient to prove that the charges reflected
therein are at market rate (or below) and, therefore, reason-
able for purposes of the restitution statutes. State v. J. M. E.,
299 Or App 483, 487, 451 P3d 1018 (2019). Rather, “[s]ome
additional testimony or evidence is required to support the
reasonableness of the bill for the hospital or medical ser-
vices.” McClelland, 278 Or App at 144.
Here, the state argues that it did not rely on med-
ical bills alone to prove the reasonableness of the amounts
paid, as was the case in McClelland, but, instead, relied on
evidence that the bills not only were paid, but were paid at
discounted rates. According to the state, it is inferable from
that evidence that the amounts sought on behalf of DHS
and WVCH were reasonable. But none of the evidence intro-
duced by the state demonstrates how the amounts billed by
the victim’s medical providers, or the amounts subsequently
paid by DHS and WVCH, correspond to market rates. In
J. M. E., we concluded that a similar lack of evidence about
how charges for medical services, or the amounts paid for
those services, corresponded to market rates, meant that
the state failed to prove that the medical expenses it was
seeking in restitution were reasonable. 299 Or App at 488.
Although it is true that the amounts paid by DHS and
WVCH were discounted—substantially in some instances—
from the amounts billed, the fact of the discount, alone, does
not demonstrate that the amounts paid were at or below
Cite as 301 Or App 48 (2019) 51
market rates. As we have explained, “the factfinder cannot
be presumed to know what a reasonable charge for medi-
cal services is based on the factfinder’s own experience, and
without further evidence.” Martinez v. Delgado-Galban, 296
Or App 659, 664, 439 P3d 526 (2019). Here, there simply was
no such further evidence. The trial court therefore erred in
awarding restitution to DHS and WVCH.
Reversed and remanded for resentencing; other-
wise affirmed.