State v. Efimoff

402                 January 7, 2026                No. 4

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
                 AFANASI EFIMOFF,
                 Defendant-Appellant.
              Marion County Circuit Court
                 23CR14483; A183554

  Tracy A. Prall, Judge.
  Submitted November 13, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin Carveth, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
  AOYAGI, P. J.
  Affirmed.
Cite as 

 (2026)   403
404                                                        State v. Efimoff

           AOYAGI, P. J.
          Defendant appeals his convictions for two counts
of felony strangulation constituting domestic violence, ORS
163.187. The crimes were elevated to a felony based on their
being committed in the immediate presence of or witnessed
by a child. See ORS 163.187(4)(a) (elevating strangulation
from a misdemeanor to a felony if “[t]he crime is committed
in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child
residing within the household of the person or the victim”).
In his sole assignment of error, defendant contends that the
trial court erred in failing to instruct the jury that a culpable mental state is required for the presence-of-a-child
element, and he argues that the required mental state is
knowledge, whereas in the trial court he argued for criminal negligence. We conclude that, under existing case law,
the knowledge argument is unpreserved, and we reject it on
that basis. As for criminal negligence, we do not address any
error in that regard, given defendant’s choice to abandon
that preserved issue on appeal. Accordingly, we affirm.
         For offenses within the Criminal Code, except violations, “a person is not guilty of an offense unless the person
acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”1 ORS 161.095(2). “An element is ‘material’
unless it relates solely to the statute of limitations, jurisdiction, venue or similar matters.” State v. Simonov, 

, 

 (2016) (internal quotation marks omitted).
Due to the evolution of case law in this area in the past
decade, we are increasingly being asked to determine what
culpable mental state attaches to an element of a crime that,
historically, has not been treated as requiring a culpable
mental state. See, e.g., State v. Owen, 

, 505
    1
      Defendant summarily asserts that strangulation is not within the Criminal
Code, and the state summarily agrees. However, it appears to us to be within the
Criminal Code. Statutes “enacted as part of the revised Oregon Criminal Code of
1971” or that are “listed in ORS 161.005” are generally understood to be within
the Criminal Code. State v. Turnidge, 

, 500 n 83, 

 (2016).
Strangulation is defined in ORS 163.187, which is within a range listed in ORS
161.005. See ORS 161.005 (listing ORS “163.160 to 163.208” as part of Criminal
Code). As it does not affect our analysis, we assume for discussion purposes that
strangulation is within the Criminal Code.
Cite as 

 (2026)                                                

 (2022) (overruling prior case law and holding that a
culpable mental state is required for serious-physical-injury
element of second-degree assault); State v. Paul, 

, ____ P3d ____ (2025) (deciding as matter of
first impression which culpable mental state is required for
the caregiver element of criminal mistreatment).
         A threshold question in such cases, as in all cases,
is whether the claim of error presented on appeal was preserved in the trial court. “Generally, an issue not preserved
in the trial court will not be considered on appeal.” State v.
Wyatt, 

, 

 (2000). However, we have
discretion to correct a “plain” error. ORAP 5.45(1). An error
is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent
on the record without our having to choose among competing inferences. State v. Vanornum, 

, 

 (2013). If a plain error occurred, and the error was not
harmless, it is a matter of discretion whether to correct it.
State v. Ortiz, 

, 

 (2024). We may
consider various factors in deciding whether to exercise our
discretion, including “whether the policies behind the general rule requiring preservation of error have been served.”2
Ailes v. Portland Meadows, Inc., 

, 382 n 6, 

 (1991).
         In this case, in the trial court, defendant argued
that a culpable mental state is required for the presence-ofa-child element of felony strangulation, advocated for criminal negligence as the required mental state, and requested
     2
       Of course, if the purposes of preservation were truly served, then the claim
of error would be deemed preserved. See, e.g., State v. Haynes, 

,

 (2012) (“[I]n analyzing whether a party adequately has preserved
an issue for our review, we examine the individual circumstances of the case at
hand to determine whether the policies underlying the rule have been sufficiently
served.” (Internal quotation marks omitted.)). We understand the above-cited
consideration for exercising discretion when a claim of error is unpreserved—that
“the policies behind the general rule requiring preservation of error have been
served,” Ailes, 

 n 6—to refer to situations in which the purposes of
preservation were not sufficiently served to treat the claim of error as preserved
but were served enough to weigh in favor of exercising discretion. See, e.g., State
v. McKinney/Shiffer, 

, 

 (2022) (choosing to exercise
discretion to correct plain error, where the defendant “did not make the precise
argument” at trial that he made on appeal but did challenge the ongoing viability
of the controlling precedent “and contested the culpable mental state that should
apply”).
406                                            State v. Efimoff

jury instructions to that effect. The state argued that it did
not need to prove any culpable mental state for that element.
The trial court agreed with the state and instructed the
jury accordingly. On appeal, defendant claims that the trial
court “erred when it refused to instruct the jury that defendant was [guilty] only if he had a culpable mental state”
as to the presence-of-a-child element. He now argues that
knowledge is the required mental state, rather than criminal negligence. Notwithstanding that shift in his position,
defendant contends that the claim of error is adequately
preserved because he “put the culpability requirement …
squarely before the trial court.” The state responds that
the claim of error is unpreserved, that defendant has not
requested plain-error review, that any error is not plain,
and that any error was also harmless.
          It is both true and unsurprising that defendant
has not requested plain-error review in the event that we
disagree with him on preservation. Where a criminal statute does not expressly specify the culpable mental state
required for a particular element, it “can be a challenging
undertaking” to determine which mental state the legislature intended to attach. State v. Propp, 

, 387-
88, ___ P3d ___ (2025). Once there is case law establishing
the required mental state for an element, it becomes plain
error not to have instructed the jury in that manner—even
if the case was tried before the new case law published, as
we decide error, including plain error, based on the law at
the time of appeal. State v. Jury, 

, 

 (2002), rev den, 

 (2003) (“Error apparent on
the face of the record is merely a subspecies of error generally. Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time
of trial.” (Footnote omitted.)); see, e.g., State v. McKinney/
Shiffer, 

, 

 (2022) (relying on
another Supreme Court case decided the same day to hold
that it was plain error not to give a mental-state instruction on a particular element). However, until such case law
exists, it is extremely difficult, if not impossible, to successfully argue on plain-error review for a culpable mental state
higher than criminal negligence. See State v. Horton, 

, 

 (2023) (holding that it was
Cite as 

 (2026)                             407

plain error not to give any mental-state instruction at all for
a particular element, but that it was not plain error not to
give a recklessness instruction, as the specific mental state
attached to that element was “an open question in Oregon
law”).
         Defendant’s argument that a knowing mental
state is required for the presence-of-a-child element of felony strangulation is therefore not one suited to plain-error
review, even if we were inclined to exercise our discretion
to provide such review in the absence of a request, which
we are not in this instance. See ORAP 5.45(7) (“The court
may decline to exercise its discretion to consider plain error
absent a request explaining the reasons that the court
should consider the error.” (Footnote omitted.)); State v.
Atwood, 

, 498 n 2, 

 (2024) (“[W]e
normally will not exercise [our] discretion in the absence of
an explicit request for plain-error review and concomitant
plain-error arguments.”). It follows that whether we reach
the merits depends entirely on whether the claim of error is
preserved, as defendant argues, or unpreserved, as the state
argues.
         As explained below, a review of the case law on
preservation of claims of error relating to culpable mental-state requirements leads us to the conclude that defendant’s
claim of error must be deemed unpreserved.
         Generally, “[w]e evaluate whether an issue is adequately preserved in light of the underlying purposes of the
preservation rule—’to allow the trial court to consider a contention and correct any error, to allow the opposing party
an opportunity to respond to a contention, and to foster a
full development of the record.’ ” State v. Gray, 

, 

 (2017), rev den, 

 (2018)
(quoting State v. Clemente-Perez, 

, 

 (2015)). “In practical terms, a party’s argument to the
trial court must be ‘specific enough to ensure that the [trial]
court can identify its alleged error with enough clarity to
permit it to consider and correct the error immediately, if
correction is warranted.’ ” 

 (quoting Wyatt, 

).
Importantly, “the presence of a common thread between an
objection at trial and an argument on appeal does not satisfy
408                                           State v. Efimoff

the preservation requirement if the two arguments are qualitatively different.” 

 (internal quotation marks omitted).
The ultimate touchstone of the preservation requirement
is procedural fairness to the parties and the trial court.
Peeples v. Lampert, 

, 

 (2008); see
also State v. Skotland, 

, 

 (2024)
(“Sometimes, the winds of preservation may be gauged by
looking to the weathervane of trial court surprise: Would
the trial court be taken aback to find itself reversed on this
issue, for this reason?” (Emphasis in original.)).
         As relevant to preservation, the Supreme Court
has distinguished between “raising an issue at trial, identifying a source for a claimed position, and making a particular argument.” State v. Hitz, 

, 

 (1988) (emphases in original). “Raising an issue at trial
‘ordinarily is essential,’ whereas identifying a source is less
so, and making a particular argument is the least significant.” McKinney/Shiffer, 

 (quoting Hitz, 

). Of course, as this case illustrates, how one defines
“the issue” can make all the difference when distinguishing between “raising an issue” and “making a particular
argument.”
         We understand defendant to argue that he raised
the necessary issue in the trial court—i.e., that the presence-of-a-child element of felony strangulation requires a culpable mental state on which the jury must be instructed—
even though his particular argument regarding what
mental state applies has changed from criminal negligence
to knowledge. That contention has some intuitive appeal.
Which mental state attaches to a particular material element is a matter of statutory construction. Propp, 

. And, at the appellate level, when construing a
statute, we are not limited by the parties’ arguments. Stull
v. Hoke, 

, 

 (1997) (“In construing a
statute, this court is responsible for identifying the correct
interpretation, whether or not asserted by the parties.”). It
is not unreasonable to suggest that, as long as a defendant
raised the issue of a mental state requirement for a particular element, the state had an opportunity to respond, and
the trial court decided the issue, the claim of error should be
Cite as 

 (2026)                            409

deemed preserved for appeal, even if the defendant’s arguments have shifted on appeal as to which specific mental
state is required. Such an approach might be particularly
defensible in a case such as this one, where the trial court
affirmatively decided that no mental state attached to the
element at issue, arguably making it irrelevant which mental state the defendant argued for.
       The problem for defendant is that his suggested
approach to preservation in this context is foreclosed by
McKinney/Shiffer.
         Prior to McKinney/Shiffer, we and the Supreme
Court had addressed preservation of mental-state issues
only in appeals where either no argument had been made
to the trial court (unpreserved) or the same argument had
been made to the trial court (preserved). An example of
the former is State v. Gray, 

, 

 (2014), in which the trial court gave no instruction on
a culpable mental state for the forcible-compulsion element
of two crimes, the defendant did not object, the defendant
assigned error to the omission on appeal, and we recognized the claim of error as unpreserved. See also Horton,

 (“[D]efendant never raised any issue
regarding a mental-state requirement for the value element of criminal mischief. … We therefore proceed with
plain-error review.”). Conversely, examples of the latter are
Simonov and Owen. In Simonov, the defendant argued to
the trial court that the lack-of-consent element of unlawful
use of a vehicle required a knowing mental state, the trial
court instructed the jury that only criminal negligence was
required, and the defendant argued on appeal that knowledge was required—an issue that was obviously preserved.

 (treating as preserved without discussion).
Similarly, in Owen, the defendant argued to the trial court
that the physical-injury element of assault required a culpable mental state of either knowledge or criminal negligence,
the trial court gave no mental-state instruction for that element, and the defendant again argued on appeal that either
knowledge or criminal negligence was required—an issue
that was obviously preserved. 369 Or at 290 (treating issue
as preserved without discussion).
410                                                       State v. Efimoff

          McKinney/Shiffer appears to be the first appellate
decision addressing preservation in the context of a mental-state argument that had shifted between trial and appeal.
In that case, both defendants had argued in the trial court
that knowledge was required for the serious-physical-injury
element of second-degree assault. 369 Or at 328-31. The
trial courts disagreed, concluding in each case that no culpable mental state was required for that element. Id. On
appeal, both defendants again argued for a required mental
state of knowledge, but they also argued for the first time
that, if the court disagreed on that point, then at least criminal negligence was required. Id. at 329, 331. The Supreme
Court treated the defendants’ claims of error as preserved
with respect to knowledge and unpreserved with respect
to criminal negligence. Id. at 327, 332-34. On the merits,
the court relied on Owen—a case decided the same day in
which the court overruled prior case law and held that the
serious-physical-injury element of second-degree assault
requires a mental state of criminal negligence—to hold that
it was plain error not to instruct on criminal negligence. Id.
at 327-28; see Owen, 

.
         In its preservation analysis in McKinney/Shiffer,
the Supreme Court never directly addresses why objecting
to the lack of a mental-state instruction was not enough to
preserve a claim that it was error not to give any mental-state instruction.3 However, the court clearly considered the
matter and decided that it was not. See McKinney/Shiffer,

.
        That is, McKinney/Shiffer clearly holds that merely
raising the mental-state issue in the trial court is not
enough to preserve for appeal an argument that a specific
mental state is required—and does so by reference to the
same general principles of preservation that we have already
    3
      McKinney/Shiffer discusses the relationship between the arguments made
below and on appeal only in deciding whether to exercise discretion to correct a
plain error. In that context, the court describes the defendants’ arguments on
appeal as differing from the “precise argument” or “specific argument” made in
the trial court but seems to view the similarities as weighing in favor of exercising discretion to correct the plain error. See 369 Or at 333-34. We take that
to be an implicit reference to the “whether the policies behind the general rule
requiring preservation of error have been served” consideration for exercising
discretion to correct plain error. Ailes, 

 n 6.
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discussed. See 

 As we understand it, the court necessarily
reasoned that it would be procedurally unfair to reverse a
conviction based on a trial court’s failure to instruct on a specific culpable mental state, where that specific mental state
was not argued in the trial court, even if a different mental
state was argued in the trial court—unless, of course, the
error qualifies as plain. See 

 at 333 (citing fairness and
efficiency as the purposes of the preservation requirement).
To put it another way, we understand McKinney/Shiffer to
take the view that, although different mental states may
share a “common thread,” arguments for one mental state
versus another “are qualitatively different” arguments.
Gray, 

; see also State v. Bordeaux, 

, 

 (2022), rev den, 

 (2023)
(“Unless we consider the ‘issue’ that defendant raised before
the trial court to be the issue of culpable mental states in general—a proposition that recent Supreme Court cases appear
to reject—defendant’s argument on appeal [(that a knowing
mental state was required)] presents a distinctly different
‘issue’ from the one that defendant raised before the trial
court [(that an intentional mental state was required)].”).
         McKinney/Shiffer is therefore dispositive as to preservation in this case. Defendant argued to the trial court
that a criminally negligent mental state is required for
the presence-of-a-child element of felony strangulation. On
appeal, he has abandoned that preserved argument and
now argues instead that knowledge is required—an issue
that is unpreserved under McKinney/Shiffer. Because it is
unpreserved, only plain-error review is available, which we
do not provide for the reasons already discussed.
         We emphasize that the only issue before us in this
appeal is whether knowledge is required for the presence-of-a-child element of felony strangulation. As previously
explained, for offenses within the Criminal Code (except
violations), a culpable mental state is required for “each
material element of the offense that necessarily requires
a culpable mental state.” ORS 161.095(2). It is undisputed
that the presence-of-a-child element of felony strangulation is a material element. If defendant had said nothing
about a mental state requirement in the trial court, sought
412                                             State v. Efimoff

plain-error review on appeal, and argued for knowledge as
the required mental state, we would likely conclude that it
was plain error not to give any mental-state instruction on
the element at issue, even if it was not plain error not to
give a knowledge instruction. That is exactly what we did in
Horton.
         In Horton, the trial court gave no mental-state
instruction for the value element of criminal mischief, and
the defendant “never raised any issue regarding a mental-state requirement” for that element. 

. On
appeal, the defendant assigned error to the omission and
argued that recklessness was the required mental state.

. We held that it was not plain error not to give a
recklessness instruction, because the specific mental state
required for the element at issue was “an open question”
without an “obvious” answer, 

, but that it was plain
error not to require any mental state to be proved for that
element:
   “Because it is an open question which specific mental state
   is required, the only error that qualifies as ‘plain’ is the
   error in failing to instruct the juries on any mental-state
   requirement for the value element.
       “In other words, it was plain error not to instruct the
   juries that at least criminal negligence had to be proved as
   to the value element, because it is now obvious and beyond
   reasonable dispute that some culpable mental state applies
   to the value element, and criminal negligence is the lowest one. However, 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.”

 (emphases in original; citation omitted). We ultimately decided not to exercise our discretion to correct the
plain error. 

.
         Unlike the defendant in Horton, defendant in this
case argued for criminal negligence in the trial court, preserving that issue, but then chose to abandon that argument
on appeal. We can only assume that he did so because he did
not believe that he could successfully argue that the failure
to give a criminal-negligence instruction was prejudicial.
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 (2026)                             413

See id. at 262 (recognizing that a criminal conviction cannot
be reversed based on harmless error, i.e., when there is little
likelihood that the error affected the verdict). In any event,
given defendant’s choice not to raise the preserved claim of
error regarding criminal negligence, the only issue before
us is the unpreserved claim of error regarding knowledge.
That is why we do not address criminal negligence. In not
addressing it, we do not mean to suggest that it was legally
correct not to require the state to prove any mental state for
the presence-of-a-child element of felony strangulation.
         Finally, we briefly address an argument made by
the state. In its answering brief, the state argues that one
reason that “defendant cannot prevail” on appeal is that “he
now argues for a jury instruction that differs from—and contradicts—the one he requested at trial.” That argument is
misplaced. It is true, as the state argues, that, if knowledge
is not the required mental state for the element at issue, then
the trial court cannot have erred in rejecting defendant’s
proffered jury instruction on knowledge, as it did not correctly state the law. But a defendant is not limited to assigning error to the refusal of a requested instruction: “Under
Oregon law, there are two different types of error respecting jury instructions: (1) error in the failure to give a proposed jury instruction, and (2) error in the jury instructions
that actually were given.” Williams v. Philip Morris Inc., 

, 

 (2008), cert dismissed, 

(2009). If defendant’s proposed instruction was wrong, that
forecloses the first type of error, but not the second type,
and it is the second type that defendant asserts in this case.
Defendant has not assigned error to the failure to give his
proposed instruction; rather, he has assigned error to the
omission of a culpable mental state from the instructions
that were actually given. That claim of error fails for the
reasons that we have discussed. But its failure is unrelated
to the correctness or incorrectness of defendant’s proposed
instruction. We think it important to clarify that point, lest
the state have a misunderstanding of it.
       Accordingly, for the reasons explained, we reject
defendant’s claim of error based on lack of preservation.
        Affirmed.