State v. Morales

                                 777

             Submitted February 9, affirmed March 10, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 MARIO MORALES, JR,
                aka Mario C. Morales, Jr.,
                aka Mario Morales Junior,
                  Defendant-Appellant.
               Umatilla County Circuit Court
                   19CR3148; A171443
                             

   Jon S. Lieuallen, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Affirmed.
778                                         State v. Morales

        PER CURIAM
         Defendant pleaded guilty to first-degree criminal
trespass, ORS 164.255, and unlawful possession of methamphetamine, ORS 475.894, and was found guilty of first-degree criminal mischief, ORS 164.365, by the trial court
after a stipulated facts trial. He appeals the judgment of
conviction for criminal mischief, raising two assignments
of error. We reject his second assignment of error without
discussion and write only to address his first assignment,
in which he contends that he should have been acquitted on
the criminal mischief charge because there was insufficient
evidence that he had the required culpable mental state as
to the amount of damages. We affirm.
         The facts supporting the criminal mischief charge
are that defendant kicked open the back door of the victims’ house, causing damage to the door and door frame,
which the victims paid $1,045 to repair. “A person commits
the crime of criminal mischief in the first degree who, with
intent to damage property, and having no right to do so …
[d]amages or destroys property of another … [i]n an amount
exceeding $1,000.” ORS 164.365(1)(a)(A). Defendant argues
that the trial court erred in finding him guilty, because, he
contends, the state was required to prove that he had at
least a criminally negligent mental state as to how expensive the damages would be to repair.
        In response, the state asserts that it was not
required to prove that defendant acted with any culpable
mental state with respect to the amount of damages he was
causing. The state relies on State v. Jones, 

,

 (2008), rev den, 

 (2009), and argues
that defendant’s argument is one that we previously considered and rejected in the analogous context of the crime of
theft. We agree.
         In Jones, the dispositive question was “whether the
material element in ORS 164.055(1)(a) that the total value
of the stolen property must be $750 or more necessarily
requires a culpable mental state.” Id. at 619. We stated that
that statute did “not require a thief to know the value of
stolen property” and concluded that “the legislature did not
intend to require the state to prove a defendant’s intent to
Cite as 

 (2021)                                 779

steal property worth at least $750 in order to convict him of
first-degree theft.” Id. at 619, 621.
        Recently, in State v. Stowell, 

, 

 (2020), we referred to Jones and rejected the argument that the damage element of the first-degree theft statute requires proof of a criminally negligent mental state. We
explained:
   “The mental state prescribed in ORS 164.055 and ORS
   164.015 is ‘intentional.’ In Jones, we concluded that the
   value of the property stolen was not an element that ‘necessarily requires a culpable mental state.’ ORS 161.115(1).
   Given the strictures of ORS 161.115(1), our conclusion in
   Jones did not leave open the possibility that a mental state
   of less than ‘intentional’ might be required as to value of
   the stolen property.”
Stowell, 

. We concluded that the trial court
did not err in refusing to give the defendant’s proposed “negligently aware” instruction for first-degree theft. 

         Under the reasoning in Jones and Stowell, as
applied to the first-degree criminal mischief statute here,
ORS 164.365(1)(a)(A), defendant’s argument is unavailing.
Although a particular culpable mental state is required
for the conduct, no culpable mental state is required with
respect to the amount of damages to the property that was
damaged or destroyed.
        Affirmed.