State v. Hanks

862                 February 12, 2025             No. 112

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                   VICTOR HANKS,
                 Defendant-Appellant.
               Coos County Circuit Court
                 22CR07957; A179037

  Andrew E. Combs, Judge.
  Submitted December 11, 2023.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, 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 Shorr, Presiding Judge, Pagán, Judge, and
Mooney, Senior Judge.
  PER CURIAM
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)           863

        PER CURIAM
         Defendant appeals from a judgment of conviction for
one count of criminal mischief in the second degree (Count
1) and one count of criminal trespass while in possession of
a firearm (Count 2). The charges arose after defendant and
his father were alleged to have trespassed onto the Bandon
Gun Club’s property and shot at a building on the property.
Defendant and his father were tried together and convicted
but have pursued separate appeals. Defendant raises one
assignment of error, arguing that the trial court plainly
erred when it instructed the jury on second-degree criminal mischief and omitted a culpable mental state regarding whether defendant was aware of the risk that he might
have caused property damage exceeding $500. In his separate appeal, defendant’s father raised the same argument.
We recently decided the father’s separate appeal, concluding
that the trial court plainly erred when it failed to instruct
the jury on a culpable mental state as to the value of the
property damaged. State v. Kitzmiller, 

,
___ P3d ___ (2025).
         For the identical reasons stated in Kitzmiller and
based on the same trial record involved in that case, we also
conclude here that the trial court plainly erred in failing to
instruct the jury on the culpable mental state as to the value
of the damaged property. 

 As in Kitzmiller, we also conclude that the error was not harmless. 

. Separately,
and as expressed in Kitzmiller, we similarly exercise our
discretion to correct that error for the same reasons. 

. Accordingly, we reverse and remand the second-degree
criminal mischief conviction, remand for resentencing, and
otherwise affirm.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.