444
Submitted June 26, 2019, affirmed May 28, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROBERT SILVER,
Defendant-Appellant.
Polk County Circuit Court
14CR00565; A166768
467 P3d 67
Defendant was convicted of one count of felony first-degree animal neglect,
one count of felony second-degree animal neglect, and 15 counts of misdemeanor
first-degree animal neglect, after sheriff’s deputies discovered a large herd of
neglected alpacas on his property. As part of his sentence, pursuant to ORS
167.350(1) (2013), defendant was ordered to pay $15,622.09 to reimburse the
sheriff’s office for the costs it incurred to care for the herd until the 176 surviving
alpacas were sufficiently stable to be removed. Relying on State v. Marsh, 187 Or
App 47,
66 P3d 541 (2003), defendant argues that the trial court erred in ordering him to pay care costs for the entire herd, because the criminal convictions
pertain only to 17 specific alpacas, and those 17 alpacas died before receiving any
care. Held: The trial court did not err in ordering defendant to pay $15,622.09.
Unlike in Marsh, the jury expressly found in this case that “the offense [was] part
of a criminal episode involving 40 or more animals,” as an enhancement factor
for the two felony convictions, which was a finding regarding the entire herd.
As such, defendant was convicted not only of neglecting the 17 alpacas, but of
neglecting the 17 alpacas as part of a criminal episode involving the entire herd,
which permitted the trial court’s order under ORS 167.350(1) (2013).
Affirmed.
Norman R. Hill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erica Herb, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.
AOYAGI, P. J.
Affirmed.
Cite as 304 Or App 444 (2020) 445
AOYAGI, P. J.
This appeal is about the cost of caring for a herd
of nearly 200 neglected alpacas. Defendant was convicted
of one count of felony first-degree animal neglect, ORS
167.330; one count of felony second-degree animal neglect,
ORS 167.325; and 15 counts of misdemeanor first-degree
animal neglect, ORS 167.330.1 Pursuant to ORS 167.350(1)
(2013),2 as part of his sentence, defendant was ordered to pay
$15,622.09 to the Polk County Sheriff’s Office to reimburse
its costs to care temporarily for the surviving alpacas until
they were in good enough health to be removed from defendant’s property. Defendant contends that the trial court
erred in ordering him to pay care costs for the herd, because
the criminal charges pertained only to 17 of the alpacas,
and those 17 alpacas died before receiving any care. For the
reasons that follow, we affirm.
In December 2013, Polk County Sheriff’s Office
Animal Patrol Deputy Kincaid obtained a warrant to search
defendant’s property and conduct a health check on a herd of
alpacas living there. Upon executing the warrant, deputies
found 17 dead alpacas, which were later determined to have
starved to death, and many living alpacas. The veterinarian in attendance believed that the animals did not have
adequate space and had not received adequate nutrition for
several months.
Ten days later, Kincaid executed a second warrant
to seize the herd and provide emergency veterinary care.
By that time, another 29 alpacas had died, and two alpacas
were in such poor condition that they were euthanized. The
remaining alpacas were seized “in place,” because their condition was too poor to move them safely. For 90 days, someone visited the property twice daily to provide food, water,
minerals, and salt to the animals, who were “extremely
emaciated,” and to watch for medical issues. Approximately
1
ORS 167.325 and ORS 167.330 have been amended since defendant committed his crimes, but, because those amendments do not affect our analysis, we
refer to the current versions of those statutes in this opinion.
2
ORS 167.350 has been amended since defendant committed his crimes, and
those amendments could affect our analysis—see Or Laws 2017, ch 677, § 4—
so all references to ORS 167.350 in this opinion are to the 2013 statute, unless
otherwise noted.
446 State v. Silver
10 more alpacas died during that period. After 90 days, the
surviving alpacas—of which there were 176—were transferred to Oregon State University, which worked with an
alpaca rescue organization to find new homes for them.
Defendant was criminally charged with 18 counts
of animal neglect. Each count specified an individual animal with a unique identification number, and it is undisputed that the charges all pertained to 17 animals found
dead at defendant’s property during the search warrant
execution, i.e., animals that died as a result of defendant’s
neglect before the sheriff’s office could provide any care to
try to save them.
The jury found defendant guilty on all counts,
which, after merger, resulted in 17 convictions. As part of
its verdict, the jury found as a sentence enhancement factor
that Counts 1 and 2—the two felony counts—were part of a
criminal episode that involved 40 or more animals. See ORS
167.330(4)(b) (enhancement factor for first-degree animal
neglect); ORS 167.325(4)(b) (enhancement factor for second-degree animal neglect).
The trial court sentenced defendant to 36 months in
prison and three years of post-prison supervision. Pursuant
to ORS 167.350(1) (2013), the court also ordered defendant to
pay $15,622.09 to the Polk County Sheriff’s Office to reimburse its costs to temporarily care for the herd until the surviving alpacas were in good enough health to be removed
from defendant’s property. Defendant appeals, raising a single assignment of error in which he challenges the restitution order. Defendant contends that, under ORS 167.350(1)
(2013), he could only be ordered to pay the cost of caring for
the 17 specific alpacas that he was convicted of neglecting,
which, in this case, were 17 alpacas that had already died
from neglect before the sheriff’s office intervened.
As a preliminary matter, we emphasize that this
appeal is governed by the 2013 version of ORS 167.350(1),
which is important because the statute has since been
amended. The 2013 version of the statute provided:
“In addition to and not in lieu of any other sentence it
may impose, a court may require a defendant convicted
Cite as 304 Or App 444 (2020) 447
under ORS 167.315 to 167.333, 167.340, 167.355 or 167.365
to forfeit any rights of the defendant in the animal subjected to the violation, and to repay the reasonable costs
incurred by any person or agency prior to judgment in caring for each animal subjected to the violation.”
ORS 167.350(1) (2013) (emphasis added).
Defendant argues that, as to each count of the
indictment, the trial court had authority to order him to
pay the costs of care only for the one animal that was the
subject of that count. In making that argument, defendant
relies heavily on State v. Marsh, 187 Or App 47,
66 P3d 541
(2003). In Marsh, the defendant pleaded guilty and was convicted of 10 counts of misdemeanor second-degree animal
neglect, but the trial court ordered him to pay care costs for
69 animals.
Id. at 49. We reversed the judgment on appeal,
construing ORS 167.350(1) (1999)—an earlier version of
the same statute at issue in this appeal—as only permitting the trial court to order the defendant to pay “for the
care of animals that defendant was convicted of neglecting.”
Id. “Because defendant was convicted of neglecting ten animals, restitution can be assessed only for the costs incurred
in caring for ten animals.”
Id.
ORS 167.350(1) (2013) is materially identical to ORS
167.350(1) (1999). The 1999 version provided for repayment of
costs incurred “in caring for each animal subjected to abuse,
neglect or abandonment,” ORS 167.350(1) (1999) (emphasis
added), whereas the 2013 version provided for repayment of
costs incurred “in caring for each animal subjected to the
violation,” ORS 167.350(1) (2013) (emphasis added). We discern no significance to that difference in phrasing, at least
as relevant to the issue at hand.3 Accordingly, if there were
no distinguishing feature of this case, we would agree with
defendant that Marsh controls. Even if it is not technically
binding, in that the statute was subsequently amended, we
adhere to its reasoning in the spirit of stare decisis, because
3
To be clear, the same cannot necessarily be said of subsequent amendments
to ORS 167.350(1). In 2017, the legislature amended ORS 167.350(1) to provide for
repayment of costs incurred “in caring for each animal associated with the criminal proceeding.” (Emphasis added.) We express no opinion on that amendment, as
its significance is not before us.
448 State v. Silver
the minor differences between the 1999 and 2013 versions of
the statute do not affect the reasoning of our prior decision.4
There is a distinguishing feature in this case,
however, which is that, as to both Counts 1 and 2, the jury
expressly found that “the offense [was] part of a criminal
episode involving 40 or more animals.” There was no such
finding in Marsh, which, unlike this case, involved only misdemeanors. See ORS 167.330(4) (crime category classification based on number of neglected animals applies only to
felony first-degree animal neglect); ORS 167.325(4) (crime
category classification based on number of neglected animals applies only to felony second-degree animal neglect).
When a person “[f]ails to provide minimum care for
an animal in the person’s custody or control” and that failure “results in serious physical injury or death to the animal,” it constitutes the crime of first-degree animal neglect.
ORS 167.330(1)(a). First-degree animal neglect is generally
a Class A misdemeanor. ORS 167.330(2). It is elevated to
a Class C felony in certain circumstances, however, one of
which is when “[t]he offense was part of a criminal episode
involving 10 or more animals.” ORS 167.330(3)(b). Thus,
although the crime itself is defined as neglect of a single animal, the severity of the crime depends on the total number
of animals neglected in the criminal episode. With respect
to felony first-degree animal neglect, the total number of
animals neglected also affects the crime classification for
sentencing purposes, with felony first-degree animal neglect
classified “[a]s crime category 6 if 10 to 40 animals were the
subject of the neglect” or “[a]s crime category 7 if more than
40 animals were the subject of the neglect.” ORS 167.330
(4)(a) - (b).
Similar provisions apply to second-degree animal
neglect. See ORS 167.325(1)(a) (a person’s “[f]ail[ure] to provide minimum care for an animal in such person’s custody
or control” is second-degree animal neglect); ORS 167.325
(3)(b) (elevating second-degree animal neglect from a Class B
4
The state argues that Marsh is plainly wrong, but we disagree that it is
plainly wrong. See State v. Civil, 283 Or App 395, 405-06,
388 P3d 1185 (2017)
(stating that we will overrule existing precedent only if it is “plainly wrong,”
which is “a rigorous standard grounded in presumptive fidelity to stare decisis”).
Cite as
304 Or App 444 (2020) 449
misdemeanor to a Class C felony if “[t]he offense was part
of a criminal episode involving 11 or more animals”); ORS
167.325(4)(a) - (b) (classifying felony second-degree animal
neglect “[a]s crime category 6 if 11 to 40 animals were the
subject of the neglect” or “[a]s crime category 7 if more than
40 animals were the subject of the neglect”).
Defendant does not challenge the legal applicability
of the enhancement factor, nor does he challenge the sufficiency of the evidence to support the jury’s finding on that
enhancement factor. At sentencing, the trial court expressly
understood that finding to refer to “the herd” as a whole, and
defendant does not challenge that point on appeal.5 Given
the jury’s express finding on the enhancement factor, we
agree with the state that “the violation” for purposes of ORS
167.350(1) (2013) was not only the neglect of the single animal alleged in Count 1 (or Count 2), but rather the neglect
of that single animal as part of a criminal episode involving the entire herd. In other words, unlike the defendant in
Marsh, who was simply convicted of neglecting 10 animals,
defendant in this case was convicted of neglecting 17 animals as part of a criminal episode involving the entire herd.
As such, unlike in Marsh, the judgment of conviction in this
case did determine that the entire herd had been subjected
to neglect. It follows that the trial court had authority to
require defendant to repay the Polk County Sheriff’s Office
the costs that it incurred prior to judgment to care for the
herd. See ORS 167.350(1) (2013) (providing for repayment of
costs incurred by an agency prior to judgment “in caring for
each animal subjected to the violation”).
Affirmed.
5
Defendant did challenge the point at sentencing, but the trial court rejected
his argument, stating that it agreed with the state that, as to Counts 1 and 2, the
allegation that the offense was part of a criminal episode involving 40 or more
animals “does refer to the herd. That was found and is one of the enhancement
factors the jury specifically found which gets you—so I think it is encompassed
within the crime. I agree with the State in that regard.”
