State v. Johnson

No. 43              January 23, 2025                   457

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
           NICHOLAS CHARLES JOHNSON,
                 Defendant-Appellant.
              Curry County Circuit Court
                 21CR15827; A178176

  Cynthia Lynnae Beaman, Judge.
  Argued and submitted March 8, 2024.
   Daniel C. Silberman, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Lagesen, Judge, and Pagán,
Judge.
  PAGÁN, J.
  Reversed and remanded.
458                                          State v. Johnson

        PAGÁN, J.
         Defendant appeals a conviction for first-degree
criminal mischief, ORS 164.365, arising from an incident in
which defendant allegedly smashed a rock into the window
of a car. Defendant raises five assignments of error; however, our resolution of the first two assignments obviates the
need to reach the other three. In his first and second assignments, defendant contends that the trial court erred when
it failed to instruct the jury that a culpable mental state
applied to the value element of the criminal mischief charge.
Although defendant did not preserve the issue, the law has
recently and rapidly changed in this area, and we accept the
state’s concession that the failure to instruct the jury was
plain error. We further exercise our discretion to address
the plain error, and additionally conclude that the error
was not harmless. We conclude that the trial court plainly
erred by failing to instruct the jury on a mental state for the
value element, which violated defendant’s right to have each
material element of the crime tried to the jury, and thus we
reverse and remand.
                    I. BACKGROUND
         A trial court has an obligation to instruct the jury
on “all matters necessary for its information in giving its
verdict.” ORCP 59 B; State v. Wiltse, 

, 

 (2024) (noting trial court’s obligation under ORCP 59 B,
made applicable to criminal actions by ORS 136.330(1), to
correctly instruct jury on necessary law). We review jury
instructions for errors of law. State v. Prophet, 

, 

, rev den, 

 (2022). “A trial
court commits reversible error when it incorrectly instructs
the jury on a material element of a claim or defense and that
instructional error permits the jury to reach a legally erroneous result.” 

 (citing State v. Harper, 

, 

 (2019)).
         To provide relevant background for how the charges
against defendant arose, we summarize some of the evidence presented at trial. In 2020, H was driving his 2019
Jeep on a two-lane highway when he pulled off to the side
of the road on “a large apron” to let faster drivers overtake
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 (2025)                               459

him. The apron was adjacent to the driveway to defendant’s
house, and defendant came out to tell H to get off his property. Defendant then walked behind H’s Jeep to take pictures. As defendant was behind the Jeep, H began to reverse.
Defendant claimed that the reversal was an assault, and in
response picked up a rock and hit the front windshield of
the Jeep with it. The impact occurred on the passenger side
at the very bottom of the windshield, where the windshield
wipers rested. The impact shattered the glass in an area a
few inches across and caused cracks to radiate outwards.
The safety glass of the windshield prevented the rock from
going through into the car. The windshield was a total loss
and cost $1,024 to replace.
        Defendant was charged with first-degree criminal
mischief (Count 1), ORS 164.365, and second-degree criminal mischief (Count 2), ORS 164.354. First-degree criminal
mischief, as relevant here, requires the state to prove that a
person:
      “(1) … with intent to damage property, and having
   no right to do so nor reasonable ground to believe that the
   person has such right:
      “(a) Damages or destroys property of another:
      “(A)   In an amount exceeding $1,000[.]”
ORS 164.365. Second-degree criminal mischief, as relevant
here, requires the state to prove that a person:
      “(b) Having no right to do so nor reasonable ground to
   believe that the person has such right, the person intentionally damages property of another, or, the person recklessly damages property of another in an amount exceeding $500.”
ORS 164.354.
         Defendant argued misidentification at trial, his
theory being that the evidence would show that H could not
identify him in a lineup, and that H was mistaken about
where the incident occurred.
         With respect to the value element of criminal mischief, the jury was instructed only that, in order to convict
defendant, it had to find that defendant had caused damage
460                                         State v. Johnson

in excess of $1,000 (for first-degree criminal mischief) or
$500 (for second-degree criminal mischief). There was no
instruction given on the mental state required for the value
element. Defendant did not raise any issue regarding the
value element at trial. A jury found defendant guilty on both
counts, which the court merged into one conviction for first-degree criminal mischief—a felony.
                      II. ANALYSIS
         On appeal, defendant argues that subsequent
changes in the law mean that the court plainly erred by
failing to instruct the jury on a mental state for the respective value elements of first- and second-degree criminal mischief. See State v. Jury, 

, 

(2002), rev den, 

 (2003) (In determining whether
the lower court plainly erred, the Court of Appeals applies
the law in effect at the time of the appeal rather than law in
effect at the time of the lower court’s decision.). Defendant
further argues that, because the error was harmful and
deprived defendant of a jury finding on an element that elevated his conduct to a felony, we should exercise our discretion to correct it. The state agrees that the error was plain,
but counters that we should decline to exercise our discretion to consider the plain error. We address, in order, our
jurisprudence on mental state instructions, preservation
and what constitutes plain error, harmless error, and our
discretion to review plain error.
A. Mental State Jurisprudence
         Defendant’s trial occurred in February 2022. At
the time, the governing law was State v. Morales, 

, 

 (2021), vac’d, 

 (2022),
which stood for the proposition that no culpable mental state
attached to the value element of first-degree criminal mischief. Shortly after, in March, the Supreme Court decided
State v. Owen, 

, 

 (2022). Owen reiterated that ORS 161.115(2) provides that, notwithstanding the
exceptions of ORS 161.105, the minimum mental state of all
material elements of a crime is criminal negligence. 

. A material element of a crime is one which “necessarily
requires a culpable mental state.” 

 at 317 (quoting ORS
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 (2025)                                                 461

161.095(2)). Crucially, the court concluded that the result
element of assault (i.e., that the defendant caused an injury)
was a material element and subject to the criminal negligence1 mental state, overruling previous case law which
required only proof of injury. 

 In Prophet, 

 (2022), we noted that Owen had established that “all
elements other than venue, statute of limitations, and the
like, ‘necessarily require[ ] a culpable mental state’ under
ORS 161.095(2), regardless of whether the statute provides
an explicit mental state.” As relevant here, we concluded in
State v. Waterman, 

, 

 (2022)
that the value element of criminal mischief is material, and
therefore requires a mental state instruction. Therefore,
under current jurisprudence, it was error for the trial court
to not instruct the jury on a requisite mental state for the
value element of criminal mischief.
B.       Preservation and the Elements of Plain Error
         Defendant acknowledges that he did not preserve
that error. Defendant did not object to the lack of a jury
instruction on that point, did not request a competing jury
instruction, and did not otherwise address the value element in argument. Defendant in turn argues that we should
excuse the lack of preservation because an objection would
have been futile, and that we should use the futility test laid
out in State v. Merrill, 

, 

(2020), adh’d to as modified on recons, 

, 

, rev den, 

 (2021). But Merrill is inapposite here because the test applies only when a party “asks
us to disavow our precedent,” which defendant has not. 

Further, in Merrill, the case in question had already been
brought to the trial court’s attention because the defendant
had objected to its application; the difference on appeal was
that the defendant was now asking for the case to be overturned. Id. at 111. But here, no objection or discussion about
the value element was raised whatsoever. We thus do not
excuse the lack of preservation.
     1
         ORS 161.085(10) defines criminal negligence as when:
“a person fails to be aware of a substantial and unjustifiable risk that the result
will occur or that the circumstance exists. The risk must be of such nature and
degree that the failure to be aware of it constitutes a gross deviation from the
standard of care that a reasonable person would observe in the situation.”
462                                                       State v. Johnson

          However, the state concedes that even though the
issue was not preserved, it did constitute plain error due to
the line of cases stemming from Owen. A plain error is (1) an
error of law that is (2) obvious and (3) apparent on the record.
State v. Vanornum, 

, 

 (2013). We
accept the state’s concession of plain error given the plainly
absent instruction. See Waterman, 

. The
state then urges us against correcting that error.
C. Harmless Error
         As a threshold issue when considering plain error
in jury instructions, we must ask whether any error was
harmless. State v. Horton, 

, 

 (2023) (laying out the harmlessness test); see also
State v. Ortiz, 

, 

 (2024) (citing
Horton’s approach with approval).2 “An instructional error
is not harmless if the verdict could have been based on an
erroneous theory of liability as a result of the instructional
error.” Waterman, 

. Whether defendant
failed to be aware of a substantial and unjustifiable risk
that the windshield of a new car might be so expensive is
a question for the jury. Here, there was at least some possibility that the jury would not have been persuaded that the
defendant was at least criminally negligent as to the windshield’s value because, in relation to the first-degree charge,
the damage to the windshield exceeded the statutory level
for establishing that charge by only $24. See Horton, 

 (applying the harmlessness test). In relation to the second-degree charge, the error was not harmless because the value element distinguishes second-degree
criminal mischief from third-degree criminal mischief; and,
we cannot say that there was little likelihood that the jury
could find that defendant was not criminally negligent as
to whether a car windshield replacement would cost $500
or more. We conclude that this error was not harmless as to
either count.

    2
      We follow the Horton approach, which, unlike in most other topic areas,
addresses harmlessness before discretion, as the issue could be dispositive, the
issues are easily confused, and the Supreme Court credited Horton as correct in
Ortiz, 

; but see State v. McKinney/Shiffer, 

, 

 (2022) (first examining plain error, then examining harmlessness).
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D. Exercise of Discretion to Correct Plain Error
          We are not required to reverse all plain errors, and
instead may exercise our discretion. Vanornum, 

. When deciding whether to exercise our discretion to
consider a plain error, we may consider, but are not limited
to, the following factors:
    “the competing interests of the parties; the nature of the
    case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
    and whether the policies behind the general rule requiring preservation of error have been served in the case in
    another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an
    opportunity to correct any error.”
Ailes v. Portland Meadows Inc., 

, 382 n 6, 

 (1991); see also Horton, 

 (discussing
considerations beyond the Ailes factors). We must, however,
be careful not to conflate the arguments between harmlessness and discretion. Ortiz, 

 (concluding
that nonharmlessness was not a legally sufficient reason to
reverse on plain-error review).
          The state additionally asks us to implement a new
test before exercising our discretion, which would require a
reasonable likelihood or probability that the error affected
the outcome.3 We see no reason to change the approach in
the well-established framework set forth in Ailes. Further,
we are concerned that such an approach would be too close
to adding a harmlessness test into the discretion framework, which the Supreme Court made clear must remain
separate considerations. Ortiz, 

.
          Turning to the factors, we conclude that the error
in this criminal case was grave. The value element was necessary for criminal liability for both counts, and it elevated
the crime from a misdemeanor to a felony for the first-degree

     3
       Defendant characterizes the test as new. The state disagreed that this was
a new test, but it did not provide a direct Oregon citation in briefing for the proposition, instead relying on federal case law. Greer v. United States, 

, 

, 

 (2021) (requiring the defendant to prove that
an error was harmful when the claim is unpreserved). While the federal courts do
take such an approach, they also lack Oregon’s discretionary plain error review
structure.
464                                           State v. Johnson

criminal mischief charge. See State v. Reynolds, 

, 

, rev den, 

 (2012) (exercising discretion based on the constitutional magnitude of a
felony conviction, even though the conviction would not have
increased the sentence). The ends of justice in this close felony case weigh in favor of having a trier of fact decide each
element. Defendant did not have any strategic reason not
to object. See State v. Ulery, 

, 

(2020) (trial court could not have avoided error under existing law, which weighed in favor of discretion). We accordingly exercise our discretion to address the error.
         The state, at oral argument, urged us to clarify the
application of criminal negligence to the value element. But
to do so would require us to conclude that criminal negligence was the correct mental state, rather than another
mental state, a topic which neither we nor the Supreme
Court have addressed. As in Horton, we decline to determine those issues for the first time in the case before us,
where they are presented in a plain error posture. 327 Or
at 262. We leave such arguments to be developed in a preserved posture.
         The state further suggests we reverse only on
Count 1 because there was no “reasonable probability that
the jury would have found that defendant was not criminally negligent in failing to be aware of the risk that his conduct could result in at least $500 in damages” with regard to
Count 2. We decline to do so because this is another version
of the state’s reasonable likelihood test, which we already
declined to implement, and we have already concluded that
the error was not harmless in relation to that count.
                    III.   CONCLUSION
         Thus, having established that the lack of a jury
instruction on defendant’s mental state with regard to the
value of the damage done was plain error; having determined that the error was not harmless, depriving defendant
of the right to have a jury decide all of the material elements of the charges; and having exercised our discretion to
address that error; we reverse and remand on both counts.
        Reversed and remanded.