State v. Bax

When an indictment uses the language of a specific intent, required by a statute, the court should not charge a defendant with lesser-included offenses that have different specific intent or elements than the statute

Defendant appealed conviction of criminal mischief in the third degree. Defendant was convicted of criminal mischief in the third-degree as a lesser-included offense of criminal mischief in the second-degree. The charging instrument alleged that Defendant violated ORS 164.354, criminal mischief in the second degree, and mentioned nothing about criminal mischief in the third degree. After finding Defendant guilty of the lesser charge, Defendant moved for an arrest of judgment arguing that criminal mischief in the third-degree was not a lesser-included offense of criminal mischief in the second-degree as charged because the two crimes have different specific intent requirements. The trial court denied the motion and Defendant appealed. However, the Court of Appeals agreed with Defendant. The Court held that third-degree criminal mischief is not a lesser-included offense of second-degree criminal mischief as charged in this case. Here, the indictment failed to give Defendant notice of charges for third-degree criminal mischief, a crime with different elements than crimes listed in the indictment. As such, the trial court erred by finding Defendant guilty of criminal mischief in the third-degree. Reversed.