534
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted April 1, affirmed August 31, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
AUDREY RAISA GIRT,
Defendant-Appellant.
Clatsop County Circuit Court
20VI81456, 20VI130048, 20VI139570;
A175824 (Control), A175825, A175826
Edward J. Jones, Senior Judge.
Audrey Girt filed the brief pro se. Also on the brief was
Brady Girt.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Nonprecedential Memo Op: 321 Or App 534 (2022) 535
HELLMAN, J.
Defendant appeals from the trial court’s judgment
on a violation citation that found her guilty of two counts
of dog running at large, ORS 609.060, and three counts of
maintaining a dog that is a public nuisance, ORS 609.095.
She pleaded not guilty and the cases were combined for trial.
Ultimately, the court found defendant guilty of the cited violations. It imposed a $1,000 fine and ordered defendant to
pay Clatsop County $6,500 for housing the dogs during the
pendency of the litigation.
On appeal, defendant raises five assignments of
error. Her first challenges the trial court’s order denying
her father’s motion to intervene in the cases. Her second
challenges the trial court’s exclusion of her exhibits. Her
third asserts that she could not be cited under ORS 609.060
because her dogs met the definition of livestock guardian
dogs in ORS 609.035. Her fourth claims immunity from
the charges based on statutes that govern farm practices.
Her fifth challenges the operating authority for the Clatsop
County Dog Control District. For the reasons explained
below, we reject defendant’s assignments of error and affirm
the trial court’s judgment.
The record contains information about only one of
the incidents for which defendant was cited, in which defendant’s dog attacked and injured a neighbor’s dog. In response
to a request for reporting party declarations, the trial court
received three eyewitness statements about the attack, one
from the injured dog’s owner and two from her family members who were with her at the time. All three described that
they were taking a walk with their dog when defendant’s
dog entered the road and, without provocation, attacked
their dog. The family dog suffered injuries that required
veterinary attention and both the family dog and the family
members who witnessed the attack (including young children) suffered trauma. Attached to the declaration were an
apology letter from defendant, taking responsibility for her
dog’s actions, color photographs of the family dog’s injuries,
and a map showing the location of the attack. The record
before us does not contain any information about the other
536 State v. Girt
two incidents, although the judgment indicates that defendant and two law enforcement officers testified at the trial.
While the case was pending, defendant’s father filed
a motion to intervene. He argued that intervention should
be granted based on his “interest and necessity of maintaining the right to farm and forestry and the rights inherently
needed to succeed in farming and integrated forestry even
within neighborhoods without real and actual exposure to
farming and modern integrated agroforestry.” His motion
explained that defendant’s dogs assisted his farming practices and that “because the picture of [defendant’s] farming and agroforestry grazing is integrally intertwined with
[father’s] and her understanding of the legal aspects has
deferred to his, her defen[s]e without his intervention would
only be partial and not complete.” He concluded that he had
established a right to intervene under ORCP 33 because he
was “a father, a mentor, and the said [allegation] of violations being a part of his partnership with [defendant], and
[defendant’s] work being an essential component of [father’s]
farming and forestry.” The trial court denied the motion.
Defendant filed identical notices of appeal in each
case. She designated as the record on appeal the trial court
file, “all exhibits that were submitted to the court including
those that were not allowed by the Judge,” and the motion to
intervene. Defendant specifically did not designate the transcript on appeal because it was “not relevant to the points of
the appeal.” The cases were consolidated for appeal.
On appeal, defendant raises the five assignments of
error listed above. In response, the state argues that all her
assignments of error are unpreserved and that none of them
rise to the level of plain error.
Initially, we do not agree with the state’s argument
that defendant’s first assignment of error was unpreserved
because defendant did not designate the transcript as part
of our record. Preservation requires that issues raised on
appeal be first raised in the trial court. ORAP 5.45(1).
Here, defendant’s father filed a motion to intervene that set
out his arguments under ORCP 33. Defendant’s opening
brief repeats those same arguments on appeal. Defendant
Nonprecedential Memo Op: 321 Or App 534 (2022) 537
preserved her assignment of error challenging the trial
court’s denial of her father’s motion to intervene.
However, that does not end our inquiry. We still
must decide whether defendant’s issue is reviewable. It is
the appellant’s responsibility to designate a record that is
sufficient for us to review the assignments of error. ORAP
5.45. If the record is insufficient, we may decline to review
the issue. ORS 19.365(5).
Regrettably, defendant did not designate the transcript on appeal, believing that it was not relevant to the
issues. In fact, the trial transcript was a necessary part of
the appellate record because it would have provided us with
the information that we need to decide defendant’s claims of
error.
As to defendant’s first assignment of error, without the transcript we have no way of knowing whether
the trial court made any oral rulings on the issues on the
day of trial before it denied the motion, or if it did, what
those rulings were. We would need to know that information to be able to evaluate defendant’s assignment of error.
Accordingly, we conclude that defendant’s assignment of
error is unreviewable.
Defendant’s second through fifth assignments of
error were not included in her father’s brief. Without the
transcript we have no way of knowing whether they were
raised at trial. Therefore, we cannot conclude that defendant’s issues were preserved.
When an issue is not preserved below, the appellant
can nonetheless ask us to review for “plain error.” ORAP
5.45(1), (4)(b), (7). Plain error review is a two-step process.
We must first determine that the error is plain, which means
that it is “an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court
to choose among competing inferences.” State v. Vanornum,
354 Or 614, 629,
317 P3d 889 (2013). If those three elements
are met, we then must determine whether to exercise our
discretion to correct the error. Ailes v. Portland Meadows,
Inc.,
312 Or 376, 382 n 6,
823 P2d 956 (1991). Defendant has
asked for plain-error review in this case.
538 State v. Girt
Here, we begin and end with the first step in the
process. Defendant’s remaining assignments of error do not
involve errors of law that are obvious and not reasonably in
dispute. On the second assignment of error, there is nothing
in the record that shows that defendant submitted exhibits that were rejected. Nor are defendant’s assertions in her
notice of appeal and opening brief legally sufficient evidence
from which we can conclude that she submitted exhibits
that the trial court rejected. We thus have no basis to conclude that there was any error of law, let alone one that was
obvious and not reasonably in dispute.
Defendant asserts that we have the authority to
decide her third through fifth assignments of error because
they involve statutory interpretation, but defendant is incorrect. On her third and fourth assignments of error, defendant
is not asking us to interpret a statute; rather, she is asking
us to determine whether the facts in her case implicate the
statutory authorities she cites. The record before us does not
reflect obvious and undisputed legal error on either of those
assignments of error. Further, defendant’s fifth assignment
of error would require us to resolve a statutory issue of
first impression that does not appear to be beyond dispute,
which is an undertaking generally incompatible with plain
error review. See generally State v. Urbina, 249 Or App 267,
271,
278 P3d 33, rev den,
353 Or 103 (2012) (observing that
the unpreserved issue of whether downloading constitutes
duplication was a question of “first impression” and therefore not plain error).
We are mindful of defendant’s pro se status in the
trial court and on appeal and that as a pro se litigant, defendant may not have appreciated the importance of designating the transcript. However, designation of the record is the
appellant’s responsibility. See Ferguson v. Nelson, 216 Or
App 541, 549,
174 P3d 620 (2007) (“An appellant bears the
burden of providing a record sufficient to demonstrate that
error occurred.”). Those rules apply equally to pro se litigants. See, e.g., C. P. v. N. L.,
274 Or App 180, 181,
359 P3d
1248 (2015). Because defendant explicitly and affirmatively
chose not to make the transcript a part of our record, we
do not consider whether we should revisit those holdings, or
whether under different facts we would use our discretionary
Nonprecedential Memo Op:
321 Or App 534 (2022) 539
authority under ORAP 3.05(3) to supplement the record on
appeal.
In sum, defendant’s first assignment of error is preserved, but unreviewable on the record before us. Defendant’s
second through fifth assignments of error are unpreserved
on our record, and there is no plain error. The judgment of
the trial court is affirmed.
Affirmed.
