State v. Lee

Based on the text, context, and legislative history of the term "tampering," for the purposes of ORS 164.345(1), to "tamper" requires conduct that alters, rearranges, or changes property in a way that has an adverse effect on the property or its use.

Defendant appealed his conviction of criminal mischief in the third-degree. Defendant used his truck to tow an SUV out of his parking spot, causing damage to the bumper of the SUV, and was charged with criminal mischief in the third degree. While discussing jury instructions at trial, there was a dispute regarding the meaning of “tamper.” The trial court instructed the jury that “tampering requires conduct that alters, rearranges, or changes property.” Defendant objected and argued the instruction was incomplete. Defendant was found guilty and appealed. On appeal the Defendant argued that the trial court erroneously instructed the jury. The Court agreed with Defendant and concluded that, “tamper requires conduct that alters, rearranges, or changes property in a way that has an adverse effect on the property or its use.” The trial court erred by refusing the Defendant’s request to instruct the jury that “tamper” involves an adverse effect. The trial court’s error was not harmless. Reversed and Remanded.