State v. Branstetter

• Decision Date: 24 April 2002
• Citation: 45 P.3d 137,181 Or. App. 57
• Parties: STATE of Oregon, Plaintiff, v. William Thomas BRANSTETTER, Defendant. Pioneer Humane Society, Respondent, and State of Oregon, Respondent, v. William Thomas Branstetter, Appellant.
• Court: Oregon Court of Appeals

45 P.3d 137

181 Or. App. 57

STATE of Oregon, Plaintiff, v. William Thomas BRANSTETTER, Defendant.

Pioneer Humane Society, Respondent, and State of Oregon, Respondent, v. William Thomas Branstetter, Appellant.

CR970077; A100029.

Court of Appeals of Oregon, En Banc.

Submitted on Remand September 24, 2001.

Resubmitted December 5, 2001.

Decided April 24, 2002.

Jay Edwards, Salem, for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Katherine H. Waldo, Assistant Attorney General, for respondent.

No appearance for respondent Pioneer Humane Society.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM and BREWER, Judges.

Resubmitted En Banc December 5, 2001.

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 P.3d 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 P.3d 1121 (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 P.2d 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.App. 565, 568, 889 P.2d 383, rev. den. 321 Or. 47, 892 P.2d 1024 (1995).³

Affirmed.

ARMSTRONG, J., concurring.

The majority correctly decides the issues that defendant both preserved at trial and raised on appeal. I agree with its result and join in its opinion. I write separately to discuss the ways in which the dissent's analysis—which is not based on any argument that defendant actually made—seriously misconstrues both the language and purpose of the statutes.

The underlying issue in this case is whether defendant can avoid the statutory consequence of his refusal to post a bond to pay for the care that his animals received while they were legally in state custody. I begin by describing the relevant statutes and how they functioned in this case, briefly look at defendant's arguments, and then explain the problems with the dissent's approach.

The sheriff impounded defendant's animals under the authority of ORS 167.345(2) (1999),⁴ which permitted that action, under the authority of a search warrant, if "there is probable cause to believe that any animal is being subjected to treatment in violation of ORS 167.315 to 167.340." Those statutes define the crimes of animal abuse, animal neglect, and animal abandonment. ORS 167.345(3) then authorized the court to order the animals held in any animal care facility in this state, which must provide them with food and water and which may provide veterinary care. Defendant does not challenge the issuance of the search warrant or the impoundment of his animals at the Pioneer Humane Society, nor does he argue that he was entitled to regain custody of the animals before his acquittal in the criminal case.

An obvious practical problem that arises when animals are impounded under ORS 167.345 is the need to pay for the food, water, and care that they receive. In ORS 167.347, the legislature dealt with that problem by authorizing the court to impose the obligation to provide care on the animals' owner. ORS 167.347(1) authorizes the agency that has custody of the impounded animals to file a petition in the criminal action asking the court to issue an order forfeiting the animals to the agency before final disposition of the criminal charge.⁵ At the hearing on the motion, the petitioner has the burden of proving that there was probable cause to believe that the animals were subjected to abuse, neglect, or abandonment. ORS 167.347(3)(a). The purpose of proving probable cause is to show that the animals are legally in the agency's custody under ORS 167.345. The court's determination of probable cause has no effect on the criminal case against the owner, as the forfeiture proceeding is entirely separate from the criminal prosecution. See State v. Branstetter, 332 Or. 389, 398-99, 29 P.3d 1121 (2001).

If the court finds that probable cause exists, it will give the defendant 72 hours to post a security deposit or bond in an amount that the court determines to be sufficient to repay the reasonable costs that the agency has incurred, and anticipates incurring, in caring for the animals from the date of initial impoundment to the date of trial. The court may waive the requirement of a bond for good cause shown. If the owner fails to post the bond, and the court does not waive the requirement, the court will order the animals forfeited to the agency. ORS 167.347(3).

It is irrelevant to forfeiture under ORS 167.347 whether the owner is innocent or guilty of the criminal charge, because the purpose of the forfeiture is to pay for the care of the animals, not to punish the owner. The provisions of ORS 167.347 are in addition to the criminal sanctions provided in ORS 167.350, which is the statute concerning forfeiture of the animals as a sanction on conviction. ORS 167.347(5). Thus, although a forfeiture proceeding under ORS 167.347 takes place in the criminal action, it does not arise from that action, is entirely separate from it, and, necessarily, is not governed by the rules that apply to criminal prosecutions. See Branstetter, 332 Or. at 398-99, 29 P.3d 1121.

What ORS 167.347 does is to provide a way to implement the legal principle that, despite the impoundment, the obligation to provide adequate...