State v. Kitzmiller

552                 January 29, 2025                No. 54

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
       DAVID EUGENE ARTHUR KITZMILLER,
                Defendant-Appellant.
              Coos County Circuit Court
                22CR07964; A179045

  Andrew E. Combs, Judge.
  Submitted December 20, 2023.
   G. Aron Perez-Selsky and Michael J. Wallace filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  POWERS, J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2025)                             553

        POWERS, J.
         Defendant appeals from a judgment of conviction
for second-degree criminal mischief (Count 1) and criminal
trespass while in possession of a firearm (Count 2) for trespassing onto the Bandon Gun Club’s property and damaging a skeet shooting machine and the building that housed
the machine, causing $1,700 in damage. In a single assignment of error, defendant challenges the criminal mischief
conviction, arguing that the trial court plainly erred in failing to instruct the jury that the value element of criminal
mischief requires a finding of a culpable mental state based
on the Oregon Supreme Court’s decision in State v. Shedrick,

, 

 (2022), which was decided after the
trial in this case. The state concedes that the court plainly
erred but contends that the error was harmless. We accept
the state’s concession, conclude that the error was not harmless, and exercise our discretion to correct the plain error.
Given the evidence adduced at trial, we cannot conclude that
there is little likelihood that the particular error—here, the
failure to instruct the jury on the culpable mental state for
the value of the property that was damaged—affected the
verdict. Accordingly, we reverse and remand the criminal
mischief conviction and otherwise affirm.
         The pertinent facts are undisputed and relatively
few. Defendant and his son, Hanks, trespassed onto Bandon
Gun Club property and shot an AR-15 .223 rifle and 9mm
pistol on the shotgun range, damaging a wooden shed and
a skeet machine that was inside the shed. Both defendant
and Hanks were charged with second-degree criminal mischief and criminal trespass while in possession of a firearm. A representative from the gun club, who was a retired
building contractor, estimated that the total cost of repair
was $1,700 ($1,500 for the building and $200 for replacement parts for the skeet shooting machine). At the close of
trial, the trial court instructed the jury as to the elements
of second-degree criminal mischief but did not instruct the
jury that it had to find that defendant had a culpable mental
state as to the value of the damage to the building and its
554                                                      State v. Kitzmiller

contents.1 Defendant did not object to the jury instructions or
request a mental state instruction. The jury returned guilty
verdicts, and defendant and Hanks, who is not a party to
this appeal, were ultimately convicted of criminal mischief
in the second degree, ORS 164.354, and criminal trespass
while in possession of a firearm, ORS 164.265. Defendant
timely appeals.2
         On appeal, defendant challenges the trial court’s
instructions on the criminal mischief charge and argues
that the trial court plainly erred when it instructed the jury
because it omitted a culpable mental state regarding the
value of the property damaged.3 See State v. Vanornum, 

, 

 (2013) (describing criteria for plain-error review). The state concedes that the trial court committed plain error in failing to instruct the jury. We agree
with and accept the state’s concession. See Shedrick, 

 (concluding that the value of the property taken is a
material element of the offense of theft, and thus that the
legislature intended a culpable mental state to apply to the
value element); see also State v. Morales, 

, 

, rev den, 

 (2023) (applying the
reasoning from Shedrick to a criminal mischief charge and
concluding that “ORS 161.095(2) requires proof of a culpable

    1
       ORS 164.354 provides, in part:
         “(1) A person commits the crime of criminal mischief in the second
    degree if:
         “…
         “(b) Having no right to do so nor reasonable ground to believe that the
    person has such right, … the person recklessly damages property of another
    in an amount exceeding $500.”
    2
       Hanks appealed his conviction separately, and that appeal is currently
pending before this court in State v. Hanks, Case No. A179037.
    3
       In his opening brief, defendant further contends that the text, context, and
legislative history of the criminal mischief statute demonstrate that the value-of-damage element requires a mental state of recklessness, not merely criminal negligence. We decline to reach that issue as it is not preserved and, instead,
we assume without deciding that the applicable mental state is criminal negligence. See State v. Horton, 

, 

 (2023) (explaining
that, in similar circumstances, “it is not obvious, and is reasonably disputed, that
recklessness had to be proved, so it cannot be said to be plain error to have failed
to give a recklessness instruction”); see also State v. Johnson, 

,

 (2023) (explaining that the legal issue raised was one of first impression that required an in-depth statutory analysis, which exceeded the bounds of
plain-error review).
Cite as 

 (2025)                             555

mental state for the amount-of-damage element of firstdegree criminal mischief”).
         However, the state remonstrates that we should not
reverse based on the conceded error because the trial court’s
error was harmless. The state argues that “there was no
basis for the jury to find that when defendant shot the building, he was not at least criminally negligent with respect
to the value of the damage he did to that building and its
contents.” Under Article VII (Amended), section 3, of the
Oregon Constitution, we must affirm a conviction despite
a trial court’s error when there is “little likelihood that the
error affected the jury’s verdict.” State v. Davis, 

, 

 (2003). Specifically, we have emphasized
that our inquiry is not whether a jury could have found the
defendant to have the requisite mental state; rather, it is
“whether there is some likelihood that the jury might not
have been persuaded that [the defendant] had the requisite
mental state, had it considered that issue.” State v. Stone,

, 

 (2023) (emphasis omitted).
         We conclude that the error is not harmless because
there is some likelihood that the verdict would have been
different had the jury been properly instructed. That is, the
jury might not have been persuaded that defendant failed
“to be aware of a substantial and unjustifiable risk” that
the cost to repair the damage to the building and its contents would exceed $500 and, if so, that that risk “constitute[d] a gross deviation from the standard of care that a
reasonable person would observe in the situation.” See ORS
161.085(10) (defining criminal negligence). In his trial testimony, defendant described the building as being at least five
feet tall and five feet wide, and it had “heavy plywood siding all the way around it.” Defendant further explained that
he “believed it was filled with either sand, hardened—hard
packed sand or dirt, either one, hard packed. That’s a common practice to stop a projectile, so that’s what I assumed.”
Defendant testified that he walked around the building and
noted that there were a number of clay traps that had not
been exploded and that “the building also had bullet holes
in it and shotgun pellet impressions in it,” which bolstered
his assumption that this was a “catch building … to stop
556                                      State v. Kitzmiller

a projectile.” Defendant further testified that the building was locked and that he could not see into the building.
Based on that testimony, a properly instructed jury could
have concluded that defendant reasonably believed that
shooting toward the structure would result in damage less
than $500.
         Although defendant acknowledged on crossexamination that the fundamental rules of firearm safety
include knowing “what you’re shooting” and “what’s behind
what you’re shooting,” there is evidence that defendant
examined the structure and searched the area surrounding it and believed that, because it was a plywood structure
with bullet holes already in it, that it must have served as
a catch building to prevent bullets from traveling further.
Moreover, defendant testified that he could not see what
was inside the structure and assumed that it was filled with
dirt or sand and not valuable equipment. Finally, the cost
of repairing a plywood structure is not common knowledge
and the photo exhibits do not demonstrate that the wood
is of such a quality that a reasonable juror would be aware
that it would cost more than $500 to repair. Compare State
v. Baker, 

, 

 (2023) (concluding that the error was not harmless because the evidence did not show how many bags of potting soil and potted
plants were stolen or whether the items had price tags and
that the value of those stolen items was not common knowledge), with Shedrick, 

 (explaining that the
error was harmless because “[j]urors with common knowledge about ATMs … and about the interests of a bar owner
in maintaining the cash levels in the ATM for customers to
use it, would have understood that the circumstances indicated a substantial risk that a large amount of money, at
least $1,000, was in the stack”).
         In sum, although a jury could find that defendant
acted with criminal negligence with respect to the value of
the damaged property, the jury also might not have been
persuaded that defendant was aware that there was a substantial and unjustifiable risk that shooting toward a plywood structure at a shooting range with bullet holes in it
would result in more than $500 worth of damage and that
Cite as 

 (2025)                             557

defendant’s failure to be aware of that risk was a gross deviation from the standard of care that a reasonable person
would observe in that situation. Thus, the court’s plain error
in failing to instruct the jury was not harmless.
         Having concluded that the trial court plainly erred
in failing to instruct the jury on the culpable mental state
for the value of the damage, we must determine whether to
exercise our discretion to correct the error. See Vanornum,

 (explaining that “discretion entails making
a prudential call that takes into account an array of considerations, such as the competing interests of the parties,
the nature of the case, the gravity of the error, and the ends
of justice in the particular case”). Because of the gravity of
the trial court’s instructional error and the ends of justice,
we exercise our discretion to correct the plain error. See
Baker, 

 (reversing a second-degree theft
conviction after concluding that “we cannot be certain that
the jury would have concluded that there was a substantial
and unjustifiable risk that the property—which turned out
to be worth about $165—would be worth more than $100”);
see also State v. Reynolds, 

, 

, rev den, 

 (2012) (exercising discretion to
correct plain error because entry of a criminal conviction
without sufficient proof is a grave error of constitutional
magnitude).
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.