State v. Branstetter

45 P.3d 137, 181 Or. App. 57, 2002 Ore. App. LEXIS 658

• Court: Court of Appeals of Oregon
• Decided: April 24, 2002
• Docket: CR970077; A100029
• Status: Published

Opinions

HASELTON, J.

Defendant appeals from an order entered in this criminal case, providing for the forfeiture of his 11 horses and one donkey to the Pioneer Humane Society of Umatilla County (humane society). We previously dismissed the case for lack of jurisdiction. State v. Branstetter, 166 Or App 286, 1 P3d 451 (2000). On review, the Supreme Court reversed our decision and remanded for us to determine the merits of defendant’s claims. State v. Branstetter, 332 Or 389, 29 P3d 1131 (2001). After considering defendant’s arguments on the merits, we now affirm.¹

In January 1997, a search warrant was executed at the pasture in which defendant kept his animals, and his animals were seized and placed in the custody of the humane society. Defendant was charged by information in February 1997 with 12 counts of animal neglect in the first degree, a Class A misdemeanor. ORS 167.330. Defendant’s trial was scheduled for October 22, 1997. On September 17, 1997, the humane society filed a petition for forfeiture of the animals. See generally ORS 167.347 (permitting impounded animals to be forfeited prior to final disposition of criminal charges under some circumstances). On October 1, 1997, the court held a hearing on the forfeiture petition. On October 15, 1997, the court signed an order allowing forfeiture of all of the animals if a bond in the amount of $2,700, to cover the cost of care for the animals, was not paid within 72 hours. The court made a specific finding that defendant had the financial ability to post the bond. On October 22, the court ordered the animals forfeited because defendant had not posted the bond. On the same day, the court entered a judgment of acquittal on all 12 animal neglect criminal charges.

Defendant appealed the forfeiture of his animals. He frames the issue presented on appeal as: “Was defendant denied constitutional due process and right to a remedy as a consequence of the forfeiture statute that did not provide for setting aside the forfeiture(s) subsequent to the acquittal(s)?” In his argument, defendant states broadly that a forfeiture that is not reversed as a result of acquittal violates not only the due process and remedies clauses, but also the “right to a jury trial, right to require proof beyond a reasonable doubt, right against double jeopardy and right against excessive fines.” Defendant’s entire “excessive fines” argument on appeal consists of the statements that “[a]ny fine/punishment is excessive where acquittals are entered,” and that defendant’s rights under the Eighth Amendment to the United States Constitution, as well as other rights, “are abrogated by allowing forfeiture(s) in spite of the acquittals.”

In the trial court, defendant’s “excessive fines” argument was just as cursory, although not identical to what he argues on appeal. In the trial court, defendant was in the position of having to oppose the forfeiture before his criminal trial (and his acquittal) had occurred. Defendant argued, in pertinent part: “[ORS 167.347] makes no provision for return of bond amounts utilized in the event the defendant is acquitted of the criminal charge, nor does it allow for return of the animals forfeited in lieu of bond if the defendant is acquitted.”² He argued that forfeiture was not permissible on a restitution theory because the humane society was not a “victim” and because restitution is permitted only upon conviction. Finally, he argued that ORS 167.347 imposes excessive fines because it does not provide for the court to consider a defendant’s ability to pay.

We reject defendant’s due process and remedies clause arguments without discussion. As to “excessive fines,” defendant’s only argument on appeal is that, because he was acquitted on the criminal animal neglect charges, any forfeiture to cover the costs of his animals’ care during the pendency of the criminal prosecution violates the excessive fines provisions of Article I, section 16, of the Oregon Constitution, and the Eighth Amendment to the United States Constitution. Defendant offers no authority for that absolutist proposition, and we are aware of none. We therefore reject defendant’s argument without further discussion.

The dissent would credit defendant with an argument that the forfeiture of defendant’s animals constituted an excessive fine because the value of the animals was disproportionate to the costs of their care. Defendant never made and preserved such a contention below. Contrary to the dissent’s suggestion, nothing defense counsel said to the trial court would reasonably have alerted the court to the analysis that underlies the dissent. See generally State v. Hitz, 307 Or 183, 766 P2d 373 (1988).

More significantly, defendant makes no such argument on appeal. Further, the argument the dissent imputes to defendant is qualitatively different from the only argument defendant does make. Accordingly, prudential principles of preservation preclude its consideration. See generally J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or 565, 568, 889 P2d 383, rev den 321 Or 47 (1995).³

Affirmed.

1 In our original opinion, the majority, in response to the dissent, included a discussion of the merits of defendant’s arguments. 166 Or App at 296-97. The Supreme Court correctly characterized that discussion as dictum. See 332 Or at 403 n 13.

2 Defendant also made an argument, not repeated on appeal, that the total value of the animals, when added to the costs of their care at the humane society, exceeded the maximum statutory fine permissible for 12 counts of animal abuse in the first degree.

3 We reiterate: Defendant, as appellant, simply does not raise any contention approximating the disproportionality challenge that underlies the dissent. As we noted in another context, “although it is axiomatic that we may affirm on grounds not argued to the trial court, there is no authority for the proposition that, without invoking ‘plain error,’ we can reverse the trial court on grounds not argued to it.” State ex rel Juv. Dept. v. Pfaff, 164 Or App470,480 n 6,994 P2d 147 (1999), rev den 331 Or 193 (2000) (emphasis in original). Much less is there any authority that we can reverse on grounds not argued to us.