State v. Silver

"In addition to and not in lieu of any other sentence it may impose, a court may require a defendant convicted 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 a government agency, a humane investigation agency or its agent or a person prior to judgment in caring for each animal associated with the criminal proceeding." ORS 167.350(1) (2013).

Defendant was convicted of one count of “first-degree felony animal neglect,” one count of “second-degree animal neglect,” and fifteen counts of “first-degree misdemeanor animal neglect.” ORS 167.330; ORS 167.325. The trial court, under ORS 167.350(1) (2013), ordered Defendant to reimburse Sheriff for costs of temporary care for animals seized; to which Defendant assigned error. On appeal, Defendant argued that the court erred in ordering reimbursement for all animals seized. Defendant relied on State v. Marsh, 187 Or App 47 (2003). The State argued that Marsh was wrongly decided. Under ORS 167.350(1) (1999), defendants convicted of animal neglect can be required to reimburse costs for “caring for each animal subjected to abuse, neglect or abandonment.” In Marsh, 187 Or App 47, the court interpreted the statute as permitting courts to order reimbursement only for animals whom defendants are convicted of neglecting. Similarly, ORS 167.350(1) (2013) permits “reasonable costs” for “caring for each animal subjected to the violation.” The Court found that the slight difference in language between the 1999 and 2013 versions of ORS 167.350 does not alter the meaning; the Court declined to overturn Marsh. Nevertheless, the trier of fact applied an “enhancement factor” to Defendant’s felony convictions to include the whole herd as Defendant’s object of neglect. Therefore, the Court held that the trial court’s order of “reasonable costs” fell squarely within the scope of ORS 167.350(1). Affirmed.