The opinion
DEITS, J.,
dissenting.
Because I would conclude that theft III may be tried as a violation pursuant to ORS 161.565(2), I dissent.
*37 The majority relies principally on two factors in the analysis in Brown v. Multnomah County Dist. Ct., 280 Or 95 , 570 P2d 52 (1977), in reaching the conclusion that theft III may not be tried as a violation. The majority states that “[w]e are particularly persuaded by the factors pertaining to the type of offense and its social significance in the community.” 99 Or App at 36. However, I do not think that either factor is persuasive. As the Brown court recognized, the factor concerning the “type of offense” is “on the whole * * * not very helpful,” because the type of offense is largely a legislative determination and, therefore, subject to change. 280 Or at 102 . As the court notes, traffic offenses were initially treated as crimes and, yet, there is nothing to prevent the legislature from subsequently decriminalizing such behavior. 280 Or at 103 .
The other factor in the Brown analysis relied on by the majority, the “punitive [social] significance” of the offense, generally is also not very helpful, because it is too subjective. As stated in Brown :
“This test, whether a judgment carries stigmatizing or condemnatory significance, has been criticized for its difficulty. See Charney, supra, at 496. True, we have no litmus paper for punitive significance, and that used by the United States Supreme Court shows red and blue in inconsistent patterns. In part this difficulty is unavoidable, since the significance of a law may differ in the eyes of legislators, of defendants, and of the general public. Moreover, their views can change with time, and a legislative decision to decriminalize an offense may lead the public’s perception as well as follow it.” 280 Or at 106 .
In Brown , the court gave this factor significant consideration, because it was able to point to specific comments in the legislative history that emphasized the serious nature of the offense in question, a first offense DUII. The court noted that the legislative interim committee that prepared the code “was at pains to point out that it did not regard this offense as less serious than reckless driving and others that remain ‘major’ or ‘serious’ offenses, triable as crimes.” 280 Or at 107 . In addition, the DUII statute made a second violation of the statute a criminal offense.
In this case, there were no similarly helpful objective indicators of the legislature’s view of the punitive nature of *38 the offense. Rather, the majority’s assessment simply relies on the subjective conclusion that “[o]ur culture has always viewed theft as a crime and continues to do so.” 99 Or App at 36. Under the majority’s application, ORS 161.565(2) would be inapplicable to the vast majority of misdemeanors to which it was intended to be applied, e.g., assault and menancing, because they are offenses which our culture has “always” viewed as crimes.
The “nature of the penalty” is the most important consideration in determining whether theft III may be treated as a violation under the statute. The Brown court thus stated “the prescribed penalty is generally regarded as the single most important criterion, at least when it involves imprisonment.” 280 Or at 103 . In this case, theft III, as a violation, carries with it a maximum fine of $250 and no imprisonment. That penalty is far below the $1,000 that the Brown court found to be the “margin” of a criminal sanction. 280 Or at 105 .
The other factors that are to be considered under Brown are the “collateral consequences” of the conviction and the pretrial procedures associated with the offense. Regarding the “collateral consequences,” the majority correctly points out that ORS 161.565(3) provides that a “conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime.” As to pretrial procedures, because an arrest for theft III is initially for a misdemeanor, all procedures that accompany a custodial arrest attach, at least they do until the defendant is brought to court for arraignment, and the court modifies the charge to a violation. This factor would weigh in favor of the majority’s result.
I would conclude that, when all of the Brown factors are balanced, a different conclusion from the one that the court reached in Brown is compelled here. The fine is of a significantly lesser magnitude than in Brown . It is well below the amount characterized in Brown as the “margin” of a criminal sanction. In addition, the secondary sanction of the loss of one’s driver’s license is not available, as it was in Brown . Further, there is nothing comparable in the legislative history that emphasizes the seriousness of the offense. I would conclude that the legislature did free the offense of theft III of the punitive traits that characterize a criminal prosecution and *39 that prosecution of the offense as a violation pursuant to ORS 161.565(2) is permissible.
Defendant makes several other assignments of error. However, I would not hold that any of them warrant reversal. First, defendant argues that she is “entitled to a jury trial, counsel, the right to confront witnesses, to demand the nature of the charge, right against self-incrimination and proportional punishment.” Because I would hold that theft III was decriminalized and, hence, that the proceeding below was a civil matter, these arguments are without merit. Secondly, defendant argues that ORS 161.565(2) violates the separation of powers provision of Article III, section 1, of the Oregon Constitution, and deprives her equal protection of the laws as guaranteed by both the Oregon and United States Constitutions. These arguments, however, were not made to the trial court. Moreover, defendant cites no authority for her equal protection argument and does not articulate an independent state constitutional theory. Therefore, I would not consider these issues at this time. See, e.g., State v. Mendez, 308 Or 9, 19 , 774 P2d 1082 (1989); State v. Barfield, 79 Or App 688, 691 , 720 P2d 394 (1986).
Defendant also assigns as error that the trial court erroneously sustained the prosecution’s objection to two questions asked by defendant on cross-examination of LaFollette. Defendant wanted to ask if he had been accused by the union representative of being racist. However, even if the exclusion of that evidence was error, it was harmless, because it would have been cumulative of other evidence that was admitted. There was testimony that LaFollette had fired several blacks and that at least two of those decisions were reversed by his superiors. In addition, the union representative testified on direct examination that, in his opinion, LaFollette was prejudiced against blacks and that he had written a letter to LaFollette’s supervisor stating his belief.
Finally, defendant assigns as error the trial court’s refusal to allow her to testify that she had no prior convictions. The trial court, however, properly denied her attempt to bolster her credibility before it was attacked. See OEC 404(2)(a); State v. Bailey, 87 Or App 664, 667 , 743 P2d 1123 (1987).
*40 For those reasons, I would affirm the decision of the trial court.
Joseph, C. J., and Richardson and Rossman, JJ., join in this dissent.